Gini Nelson’s Engaging Conflicts

Just as there are subsets to ADR, there also are subsets to Meditation itself. When the parties are predisposed to mediation, good people like David River are available and should be utilized to participate in facilitative mediation. The parties know they have a problem, recognize, in some instances, that their relationships are interdependent and they just want the problem to go away so they can get on with life. In facilitative mediation, the Mediator provides a neutral forum for the parties to discuss their desires and frustrations in the hopes that open lines of communication will produce a “legally enforceable” compromise (e.g., a settlement agreement). If the parties are mature and motivated, this can be a wonderfully successful means to resolve conflict. There also is a safe harbor for mediators in facilitative mediation because legal consequences are not driving the resolution; all participants understand that if we cannot solve the problem today, costly and time-consuming litigation is inevitable.

Unfortunately, we do not live in a perfect world, and sometimes the parties are so entrenched that a little “adult supervision” is required to fashion a binding peace accord. When these latter parties are forced or otherwise come “kicking and screaming” into mediation, it is unlikely that facilitative mediation will be successful because the parties would rather be elsewhere. In these instances, directive mediation can and should be utilized in trying to resolve the dispute. Under directive mediation, the Mediator explores the range and likelihood of possible legal outcomes with the parties in trying to reach a settlement. If the mediator is an attorney or Judge, free and open discussion on legal rights and responsibilities become part of the dialogue. In other words, “I understand, Mr. Williams, that you really want to keep the house, but unfortunately your name is not on the deed, etc.”

As an attorney mediator, I can make such a statement without concern about violating some rule or regulation because I have a license to practice law. Without that “license” to drive the mediation, I would be walking a tight rope constantly in search of boundaries (known and unknown) for what I cannot do or say as a mediator. Question: if the goal is to keep the parties together long enough to get them talking about a resolution, do I really have time to sit at the table and wonder whether I, as Mediator, am coloring outside the lines in my own actions? I humbly submit that the facilitator cannot facilitate if he or she is a part of the problem. For me, three years and a written exam eliminated this movable obstruction from the equation.

Consequently, my bottom line remains unaltered at this point: whether mediators who are not attorneys can effectively serve the needs of adverse parties, when authorized to do so by law, depends largely on the who the parties are and what they are fighting about at the time. The more pronounced the question of fault, the more likely that an attorney-mediator is necessary to legitimize the process.

Best wishes,

Rawle

This concludes Rawle’s post this week. David B. River will respond next week.