Mediation is one of a number of Alternative Dispute Resolution (ADR) processes that, despite its introduction in North America some 40 years ago, is still not widely understood. It offers a number of alternatives to the legal adjudication of disputes through the courts. Mediation is private, confidential (unless information is disclosed relating to individual safety and harm), voluntary, and without prejudice (so that participants can be confident that their words will not be used against them in the courts).
The benefits mediation offers to people are often thought of in terms of greater efficiency, less cost, and less emotional stress or turmoil in relation to other ways of managing conflict or differences. Most important, regardless of the approach used by the mediator, and there are several, it is universally accepted that mediation’s principal value lies in self-determination: it’s the parties that make the decisions on how to move forward not the mediator. The differences in approach lie in which decisions are made by the parties and which are made by the mediator, directly or indirectly.
Mediation can, when practiced a certain way, offer a distinct benefit to participants that is an objective of no other dispute resolution mechanism; it is a value in and of itself, and does not need to be described in relation to other processes such as the courts, negotiation by lawyers, arbitration, etc. Mediation has the potential of helping the parties re-orient themselves to each other. The key to this approach is to view conflict as disorienting for people in how they see themselves and how they see the other person. People in conflict often see themselves in terms of “I feel bad”; they see the other person in terms of “You are bad.” The help a mediator can offer is to support the parties’ own movement in conversation towards strength of self and openness to the other person.
Sounds like therapy. Well, not really, because the objective is not to fix people, but rather to support what people can and want to do themselves: feel better about themselves in moving forward out of conflict.
So how does this work? First and foremost, it means creating a space where all decisions remain with the people involved. The mediator isn’t in control or in charge but rather a guest invited into a conversation between the parties. My role consists of supporting the parties in having as constructive a conversation as possible while not taking any decision-making away from them, whether decisions about how to talk to each other, or decisions about what to talk about. Transformative mediators, such as myself, are convinced that decisions about how people talk to each other, including the timing of what is raised, are best left to the parties themselves. If they aren’t left to the parties, the mediator intentionally or not, will have directly or indirectly affected decisions on outcomes. And if the parties want expert assistance and advice in any given area, that too can be part of the conversation in terms of who can offer that expertise and how it can be obtained.
When parties control how they talk to each other and what they talk about, the conversation can get heated. When this happens in mediation, I seek not to contain matters so as to avoid this heat but rather to support the parties to say whatever it is they decide to say, however they want to say it. My belief is that difficult issues that are avoided will return once the parties leave the mediation room. Much better to allow the parties to work through all matters in their conversation, no matter how tough or unpleasant. Settlements will take place provided that the parties freely decide to agree, and an agreement is feasible. And, any agreements that are reached in this way will have better prospects of lasting than when reached in a process that deals only with tangible differences chosen by the mediator. Where settlement is not the outcome of the process, parties will have had an opportunity, that they may take or not, to make decisions from a position of strength and openness to the other person.