by RICH CASSIDY on JULY 17, 2011
I belong to a LinkedIn Group, Alternative Dispute Resolution (ADR) Professionals. Today, I read a question there that caused me to reformulate some old thinking in a new way. Here is the question, from ADR Group Member and United Kingdom Mediator Paul Whittle:
“Is evaluative mediation just another version of an inherent injustice process whereby the decision is imposed by a third party?”
And here is my answer:
Your question begins based on a premise that I don’t share.
I don’t agree that every decision imposed by a third party is by nature unjust. In fact, I don’t really believe that mediation can regularly be successful outside a system in which the rule of law is functioning. The essence of the rule of law is a system in which there are readily ascertainable rules that have been fairly established, apply equally to all, and are fairly and honestly applied. Such an ideal is not easily attained, but I believe that it is the path to justice.
Without a good measure of the rule of law, tyranny or disorder reign. One cannot negotiate effectively with a corrupt and absolute dictator. Mediation in such a setting could not routinely be effective.
Of course, there is an underlying justice to a solution to a dispute that conflicting parties knowingly and voluntarily agree upon. Even imposed solutions must turn to agreement as an indicator of what is just. Consider one of the best definitions of justice I have ever come across, John Rawles’ “veil of ignorance.” As I understand it, it is the idea that a just resolution is one that the parties would agree to in advance without knowing their positions in society, and therefore ignorant of how the rule of decision would apply to themselves. (It might interest you to compare my adaptation of Rawles’ idea with his own statement of it, from his book, A Theory of Justice (The President and Fellows of Harvard College, 1971).
That said, your question is really aimed a mediation technique. No, I don’t agree that evaluative mediation is just another version of decisions imposed by a third party. The underlying essence of mediation is facilitating the parties in reaching their own agreement. There are lots of ways to do that. I try to match the technique to the circumstances. My usual first rule is to stay out of the parties’ way until I can understand enough to try to find the right technique or techniques to help. Sometimes, once the parties of come together to communicate, they will reach agreement on their own. As the doctors say, first do no harm!
Of course, staying out of the way is not usually enough. Sometimes you can help improve that parties’ communication and they can build a better relationship. Sometimes you can help generate some solutions that will satisfy all. Sometimes one party or another does not have a realistic appraisal of the likely outcome of the dispute if not resolved by agreement, and helping such a party understand the likely outcome will move towards agreement. Sometimes things need to go off in some other direction altogether.
That is why — to my mind — mediation is truly a learned profession. There is a lot to know about human nature, the law, and technique, among other things, that may improve our performance as mediators. That’s one reason that it is a satisfying way to spend one’s time and energy. I agree that your stated aim, “[T]o become a ‘master’ of mediation through constant learning, practice and gaining experience from the greats of the mediation world…” is a worthy one.
Thanks for a thought provoking question.