Gini Nelson\’s Engaging Conflicts

July 27, 2006

Guest David B. River: The Genius Of Mediation

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:01 am

Guest David B. River continues today with part two of this week’s post. He and Rawle Andrews Jr., Esq. share their thoughts in an ongoing conversation about ethics and professional development in mediation. He and Rawle are guest blogging on alternating weeks during this discussion.

Rawle writes, “Learning to think like a lawyer enables the practitioner to sift through a maze of facts and emotions like the search for the common denominator in mathematics.” What is the lawyer-mind searching for? In his example, it is the right amount of damages in a certain case based on law rather than emotions, fault, or ability to pay. I appreciate his excitement in saying “This is the genius of the legal system.” I agree!

The genius of mediation is that it removes the third-party decision maker. It is genius because although people may say that they just want the situation over and want someone to make a decision, they actually want someone to decide in their favor. The legal answer, however elegant and well-supported in case law, may leave people just as angry as they were before. In mediation, responsibility for the outcome rest squarely on the clients (which does not exclude any type of support from legal, financial or therapeutic professionals). The clients are the ones who must squirm with the difficulty of finding an acceptable outcome, and there is no one outside the situation to convince, cajole or blame. The genius and importance of this approach is that it makes resolution possible.

This setting is wholly unique from a legal process, even though it is influenced by it. Working out beliefs about fault (in divorce, discussions of fault are a routine part of the mediation process), the human experience, pain, love and grieving are as important as understanding the legal context and finding a workable outcome. Mediators spend much of their time in ambiguity. I have received many blank looks from attorneys in mediation role plays when I say, “The truth doesn’t matter right now!”

In the midst of a mediation, my mind is busily sifting through facts and emotions, asking, “How does this argument make sense to this person? Does she simply need to express something that hasn’t been said or is her upset based on a perceived material need? Does he need to vent emotions or look at his expense sheet? How can this person give up their position while saving face? Why did he tear up just now and should I stop or let it pass? How can I challenge this person to ask for what they want without losing the other client?”

My good mediation clients are defined not by an absence of questions of fault, but their willingness to be empowered as the chief negotiator for their situation. I am merely providing grease for the wheels.

The sticky issue arises when mediation clients are not well-informed. What if the grease needed in a situation is legal information?

I’d like to address this more next time, but suffice it to say that where Rawle sees ADR as an acceptable course to take in the midst of a law degree, I’d like to see a law course or two given in the midst of an ADR degree.

Best wishes,

David

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