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| Introduction | ix | ||||
| Acknowledgments | xvii | ||||
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1 | (30) | |||
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31 | (20) | |||
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51 | (28) | |||
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79 | (22) | |||
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101 | (26) | |||
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127 | (40) | |||
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167 | (20) | |||
| Afterword | 187 | (42) | |||
| Resources | |||||
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191 | (4) | |||
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195 | (8) | |||
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203 | (8) | |||
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211 | (8) | |||
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219 | (10) | |||
| Notes | 229 | (4) | |||
| About the Author | 233 | (2) | |||
| Index | 235 |
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What Is Mediation?
To mediate means "to go between" or "to be in the middle." This, literally, is what mediators do. They go between people involved in a dispute and try to help them work out a solution to their problem.
Here is a formal definition: Mediation is a process in which two or more people in a dispute come together to try to work out a solution to their problem with the help of a neutral third person-the mediator.
The mediator's role is not that of a judge deciding who is right and who is wrong. Neither is it to give legal advice (even if the mediator happens to be a lawyer); nor is it to be a counselor or therapist. The mediator's only role is to bring the parties together to help them evaluate their goals and options and find their own solution to their problem.
Exactly how the mediator does this may be puzzling to those not familiar with the process. After all, each of us is at times a mediator: department heads mediate between workers; parents mediate between children; friends mediate between friends. Yet most people would not presume themselves capable of sitting down in a room with total strangers and, in the course of an hour or two, helping them find a solution to a problem that may have vexed them for months or years.
Formal mediation involves a lot more than just getting folks together to talk about their problem. It involves the mediator, who is trained in conflict resolution, and it involves the mediation session, a highly ritualized, multistage proceeding. Employing their skills through the different stages of mediation, mediators attempt to unfreeze the parties from their fixed positions and open them to the possibilities of creative solutions. The mediator works to help the parties
ò Discover the true issues involved in their dispute
ò Understand the difference between what they want and what they need
ò Understand the wants and needs of the other side ò Realistically consider the possible options
MEDIATION COMPARED TO ARBITRATION AND LITIGATION
An experienced mediator once lamented: "I spend a lot of time at dinner parties explaining that mediation is neither arbitration nor meditation."
People often do confuse the words mediation , arbitration , and litigation -and meditation . I was once introduced on a national talk show as an expert on how to resolve disputes through meditation! Even the esteemed journal Mediation Quarterly published one issue with Meditation Quarterly printed on the spine. But the words them-selves sound more alike than the procedures they describe actually are. Let's take a quick look at the three processes and how they differ.
Litigation: In litigation, parties go to court to have a judge or jury decide their rights under the law. Parties usually hire lawyers to guide them through the legal action and to speak for them in court. Throughout the process, strict rules must be followed as to what information and documents the parties may present, as well as what they can say to try to prove their case. These are called rules of evidence . Typically in litigation, one side wins and the other side loses, although the losing side can ask a higher court to change the decision in what is called an appeal . If a court orders one side to pay money or take other actions, the order can be enforced by marshals, police, or other government agencies.
Arbitration: Arbitration is a little like going to a private court with more relaxed rules; it has long been used to resolve commercial and labor disputes (including, more recently, labor disputes in professional sports). In arbitration, a neutral third party-the arbitrator -conducts a hearing between the disputants and then, acting as a judge, renders a legally binding decision. Arbitration is less formal than litigation, and strict rules of evidence are not usually followed. Partly for this reason, cases tend to move through arbitration much more quickly than they do in court. The arbitrator's decision is usually binding and cannot be overturned except in rare circumstances, such as if the arbitrator is later found to have been biased either in favor of or against one of the parties.
Mediation: In mediation, the neutral mediator does not act as a judge or arbitrator; he or she has no authority to impose a decision. Instead, the mediator conducts a face-to-face hearing with the disputants and, using special skills of listening, questioning, negotiating, and creating options, helps the parties work out their own solution to their dispute. In effect, the mediator acts as a catalyst; the mediator's skills, acting on both parties, help them resolve their dispute.
Compromise is often involved but not in the sense of splitting the difference. The goal is to find a win-win solution in which both sides achieve something they want. Rules of evidence and other formal procedures are not normally used in mediation, but the agreement reached can be made legally binding when drafted in the form of a contract. Table 1.1 lists some of the differences among mediation, arbitration, and litigation.
MEDIATION IS FLEXIBLE AND FORWARD LOOKING
Courts are often limited in the kinds of disputes they can hear: bankruptcy courts hear bankruptcy cases; family courts hear family disputes. Mediation, however, is not a court; it is a process that can be applied to nearly all kinds of disputes. It can be used to decide who will own the Sinai Peninsula or who will park their car on weekends in the driveway you share with your next-door neighbor. It can be used to determine how one computer company will compensate another for infringing on the rights to use its operating system software or how your dry cleaner will compensate you for fraying the collars of your dress shirts. It can be used to determine if a shelter for the homeless can be operated by a church in a residential neighborhood in Atlanta or in whose home your children should live after you and your spouse divorce.
For these and many other types of disputes, mediation works so well because it is forward looking, not backward looking. The law looks back to find who was right and who was wrong; mediation looks ahead to find a solution both parties can live with. In law, the court uses its power to dictate a decision; in mediation, people empower themselves to find their own solutions.
MEDIATION IS EMPOWERING
This issue of empowerment may be a key to understanding why mediation has taken hold and is gaining so fast in popularity. Many people rightly wonder why it should take two to three years to get a result in a simple legal claim for $10,000. They wonder why, in going to court, people should tolerate an experience that may resemble, to paraphrase Jerold S. Auerbach, a sudden regression to childhood, where they can understand neither the procedures nor the language, where an attorney assumes the role of parent and the disputant becomes a dependent child, and where the judge looms as a menacing authority figure, empowered to divest litigants of property or liberty.
Why not, as educated and reasonable adults, meet face-to-face with people with whom we have disputes and, with the aid of the skilled mediator, give ourselves the power to work out a solution to our own problem? "Mediation," notes mediator Paul Wahrhaftig, is an "attempt by everyday people to wrestle back control over their own problems."
MEDIATION COMPARED TO OTHER FORMS OF DISPUTE RESOLUTION
To better understand mediation, consider where it fits among other dispute resolution techniques. In addition to arbitration and litigation, these include
ò Negotiation: Parties try to resolve their dispute by talking directly with each other or through their counsel.
ò Conciliation: A neutral third party intervenes, not so much to resolve the dispute as to reduce tensions and get the parties talking.
ò Fact finding: A neutral third party-often an expert in the matter under dispute-assesses the issues and presents findings of fact and recommendations to the parties.
As disputants move from left to right on the chart shown below, generally the cost of the dispute resolution method increases while the parties' control over the process and their dispute decreases.
HISTORY AND GROWTH OF MEDIATION
In eastern cultures, mediation has long been the preferred method of resolving disputes. In Japan, where there are said to be more flower arrangers than lawyers, mediation is used extensively. In China, it is estimated that thirty-five times as many disputes are settled through mediation as through the courts; some eight hundred thousand mediation panels operate at local and regional levels, with more than one million people trained as mediators.
Even in the United States, mediation has a long history. In 1636, the Puritan founders of Dedham (a community located southwest of Boston) provided in their covenant for a system of informal mediation. In New Netherland, Dutch colonists established a Board of Nine Men to serve as "friendly mediators and arbitrators." In colonial Virginia, the legislature noted the "excessive charges and greate delaies" of litigation and encouraged citizens to resolve disputes by other means.
Later, beginning in the 1800s, Chinese immigrants on the West Coast, Scandinavian immigrants in the Midwest, and Jewish immigrants in New York set up mediation boards to resolve disputes within their own communities. In 1947, the federal government established the Federal Mediation and Conciliation Service (FMCS) to resolve disputes between industry and labor; in 1964, the U.S. Department of Justice formed the Community Relations Service to mediate racial disputes arising under the Civil Rights Act.
The current surge of interest in mediation began in the early 1970s-a time when state and federal courts were swamped with huge numbers of lawsuits by consumers, minorities, home owners, crime victims, and so on. This rush to court, known as the litigation explosion , resulted in delays-sometimes of many years-before people could have their cases heard by a judge. In an early effort to address the problem, the U.S. Department of Justice conducted an experiment in three U.S. cities-Atlanta, Kansas City, and Los Angeles. The goal was to answer this question: Could disputes involving ordinary citizens be successfully resolved through mediation as an alternative to traditional litigation?
During a fifteen-month test period in the late 1970s, 3,947 disputes were handled by locally based mediation centers in the three cities. Of the cases that went to a formal mediation session, more than 82 percent were successfully resolved; as many as 95 percent were resolved for some types of disputes.
Six-month follow-up interviews with the disputants showed very high rates of satisfaction with mediation, as detailed in Table 1.2. (In the table, the term claimant refers to the person who initiated mediation, and respondent refers to the party who agreed to participate.)
In telephone interviews, disputants explained their attitudes about having tried mediation.
In Kansas City:
Mr. S. described his experience with the court as lousy, as opposed to his feeling that the people at [the mediation center] were fair ... also, cooperative and helpful, as opposed to the general lack of cooperation at the court. In court he had no say.
Mr. R. [who had been in matrimonial court one time previously with his wife] said, in comparison to court, he felt the [mediation] people were trying to resolve his and his ex-wife's differences, whereas the court was a frightening experience.
"Going to court is a contest between lawyers, not a way of solving problems between people."
In Los Angeles:
The claimant [a businessman] was very satisfied with the process and the mediator ... "takes less time than courts" ... and he got his money.
Ms. M. was very positive about the whole experience. "The mediator was skillful, and the respondent lived up to the terms of the agreement. My previous court experience was scary."
In 1980, the U.S. Congress, finding that "the inadequacy of dispute resolution mechanisms throughout the United States is contrary to the general welfare of the people," passed the Dispute Resolution Act to help more local communities establish mediation centers like those that had succeeded in Atlanta, Kansas City, and Los Angeles.
As it turned out, Congress never did provide funding for more local mediation centers, but state and local governments did. In 1975, there were fewer than a dozen public mediation centers around the country, but by 1985 there were 182; today, nearly 400 centers serve U.S. communities from coast to coast, handling hundreds of thousands of cases per year. Later, we'll look more closely at these public mediation centers and what kinds of cases they handle.
In recent decades, other national legislation-the Administrative Dispute Resolution Act, for example-and scores of state laws have been passed to establish, fund, and promote the use of mediation in an ever-increasing range of circumstances.
At the same time, the private sector has spawned hundreds of national, regional, and local for-profit dispute resolution services, as well as thousands of independent private mediators. The private services tend to specialize in mediating legal and business disputes; they may charge substantial fees for their services, but the fees are nearly always far lower than the cost of litigation. Independent mediators in private practice handle everything from complex construction cases to family disputes and divorce. (For more about these and other types of mediation services, see Chapter Three.)
WHAT MEDIATION LOOKS LIKE
The bailiff bangs three times on the courtroom door and says, "All Rise! This court is now in session, the Honorable Peter Lovenheim presiding!" If I were a judge, that is how a hearing in my courtroom might begin.
Mediation begins differently: "Hello. Are you Rebecca LeClair? I'm Peter Lovenheim, the mediator. Will you follow me to the hearing room, please?"
Part of the reason for this striking difference between the courtroom and the mediation room is mediation's focus on relationships rather than formality. If the parties have a relationship with each other, that will become an important factor in the mediation process.
Continues...
Excerpted from Becoming a Mediator by Peter Lovenheim Copyright © 2002 by Peter Lovenheim
Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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