Category Archives: Mediation

Mediate.com CEO responds to questions about new Mediator Certification Program

questions for Mediate.com CEO Jim MelamedThe following interview is reprinted with permission from the Mediate.com web site, with thanks to Mediate.com CEO Jim Melamed. No enhanced interrogation methods were used in the making of this interview. Please feel free to add your comments at the end of this post.

Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed

Three of the mediation world’s leading bloggers, Diane Levin, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think “grilled”) Mediate.com CEO, Jim Melamed, on the new Mediate.com Certification Program. Here is the interview:

Question: How will Mediate.com’s certification program work?

The Mediate.com certification program allows interested mediators to have their training, experience and professional information reviewed to see if they meet the stated Mediate.com certification standards. A critical component of the Mediate.com program is that we require all this submitted information to be transparently provided to the public. So, we don’t just review the qualifying information, we make everything we review publicly available. Needless to say, confidential information is neither requested nor disclosed.

Question: What are the benefits for the public? For the profession?

The primary benefits to the public include motivating mediators to provide comprehensive information conveniently online; having this information systematically presented to the largest possible audience; and Mediate.com offering the value-add service of taking a close look at the mediator’s provided information to ensure that it is comprehensive, congruent and satisfies the stated certification standards. Presumably, the Mediate.com Certification Program will be one of a number of factors helping people to make mediator selection decisions. For good reason, this program will elevate the confidence of many mediator selection decisions.

Still, let’s be clear, one does not need to be a Mediate.com Certified Mediator to mediate. For example, we have over 3,000 mediators in our directory and only about 500 are seemingly qualified or even apply for Mediate.com Certification. We believe in all cases that the right mediator for a particular situation is the one that participants want.

The benefits to the profession are: making it abundantly clear what it is that distinguishes mediation and insisting on these qualities; elevating standards for mediator information disclosure; providing a path for mediator development not based upon profession of origin nor advanced degrees; and, in the Internet age, satisfying consumer expectations in terms of transparency and disclosure. Mediate.com seeks to respond to these elevated information expectations.

Question: On what basis does the proposed certification rest?

Perhaps the greatest rationale for Mediate.com acting is that we believe acting is better than not acting.

For decades, the mediation field has, as a matter of policy, committed itself to “skills based assessment” and, later, to a “paper and pencil test,” none of which has yet been effectively developed or implemented. This is in spite of nearly two decades and millions of dollars of grant money being applied to these issues. The cost of this development and deployment of a true skills-based system would be enormous, if possible at all (we really do not know what makes an effective mediator in each practice area); so costly by my estimate that it is simply not going to happen, at least not for “all mediation,” over the next years.

The world of mediation is also breaking into niche mediation industries, each with its own culture and practice expectations. This is both good and challenging from a quality assurance perspective. For example, the behavior and skills that will be effective for a commercial mediator in a law firm conference room may be very different from the behavior and skills that will be effective in resolving a gang dispute, custody battle or workplace departmental battle. Still, we also simultaneously think that there is something to say for a system that brings all mediation and mediators together, if only to protect the good name of “mediation.”

We are thus emphasizing these qualities to the consuming public:
• Participation in mediation negotiations is voluntary
• Participants have complete decision-making power
• The mediator is to be impartial between the participants
• Mediation communications are confidential unless understood otherwise
• Mediation allows for optimized solutions
• Mediation does not preclude any other process
• If participants do not reach agreement in mediation, their legal rights should not be prejudiced.

Now, to some, all of this is “obvious.” And we say, “of course.” But I will suggest that many state and federal agencies and court systems do not necessarily see things this way. They are far more interested in disputes being resolved and dockets cleared than in protecting the mediation process or in empowering participants to be at their best.

The world has also changed. Importantly, the Internet is now available as a source for the immediate delivery of unlimited information and comprehensive disclosure. In the context of empowering consumers and participants to “self-determine,” we think it is worthwhile to reward (with our mediation certification) those mediators that demonstrate substantial training, experience, clear commitment, and comprehensive information disclosure and transparency.

Question: What qualifications, standards, and/or objective criteria will certification be premised upon?

First, let me again emphasize that certification is completely voluntary. Mediate.com is not saying that any mediator needs to be certified. We believe that the right mediator is the one the participants want. So, we are certainly not precluding anyone from mediating.

As to the adopted training and experience standards, these have now been in place at Mediate.com for a number of years for self-evaluation as a “Senior Mediator” in our Qualifications Disclosure Program. In fact, these standards were originally adopted as an outgrowth of the work of the ACR Task Force on Certification. The ACR Task Force gave up, if only for practical reasons, on SPIDR’s previous commitment to a skills-based assessment. Despite the ACR Task Force’s commitment to a paper and pencil test in 2004, none has been developed nor implemented to date.
The concepts of skills-based or paper and pencil testing sounds great in the abstract. It is more challenging when, in this testing context, one needs to ask what specifically makes for an effective mediator, and how can we measure this in a valid and reliable way? Further, assuming you can somehow come up with this desired knowledge and skill base and all evaluation mechanisms, you would then need to identify the specific curriculum a mediator applicant would need to take to be best prepare to pass the test. And then one would need to approve those training programs. It all becomes rather endless and nothing happens.

And so, I suppose, the ultimate credibility of the Mediate.com standards comes from: 1) The ACR Task Force on Certification having reached essentially the same conclusions (except for the paper and pencil test); and 2) The elevated Mediate.com standard being better than either no standard or existent 30 or 40 hour (low) standards that too commonly exist. As imperfect as the Mediate.com’s program is, we believe that it is a step in the right direction and that it is what can be reasonably accomplished today.

Question: So, are experience and training a proxy for skill and ability?

Because of the difficulties raised above in measuring true skill-based competency (especially on an across-the-board mediation basis), I would say yes, extensive training and experience, including providing specific practice area case information, references, and all the other required disclosures are in fact a proxy. To some extent, this is appropriate (if only compared to reasonably available options). For example, when people ask me what I think mediation qualification standards should be, I sometimes half humorously respond: “You should need to mediate 10 cases and still want to mediate.” If we cannot reasonably measure competence per se, I would agree that elevated training and case experience, comprehensive disclosure, and perseverance may in fact be our best available proxy.

Question: How will Mediate.com’s Certification Program relate to emerging practice area, court, agency, and state mediator certification programs?

Mediate.com’s goal is to set reasonable standards for today available to the entire field of mediation. For those who find such accomplishment beneficial, this may well be a welcome means of establishing credibility and reputation. Surely, the Mediate.com program will not be the only certification program nor should it be. We welcome, expect and encourage the development of additional practice area, court, agency and state mediator certification programs. We suggest that these programs may also want to consider the 100 hour of training and 500 hours of casework standards, as these are based on the original ACR Certification Task Force Report and as a measure of consistency will likely assist both the public and the profession. In any event, this 100/500 standard is surely more appropriate than the current common 30 or 40 training requirements. We also think it important that judges, lawyers, and all other professionals understand that substantial mediation training and experience are necessary to be a most effective mediator and that simply being a silver-haired professional or retired judge is not enough.

Very specifically, I see the Mediate.com Certification Program rather easily integrating with the IMI certification program for commercial mediators (see http://www.imimediation.org) and, hopefully, with emerging divorce and workplace certification programs from ACR. Our hope is that Mediate.com’s efforts will serve as a catalyst further motivating such thoughtful development. Mediate.com literally requires our certified mediators to list all organizational affiliations (including other certifications) and we look forward to lending visibility to all meaningful efforts to elevate mediator performance.

Question: What kind of instrument or assessment will Mediate.com use?

The Certification Application is at this location: http://www.mediate.com/products/pg1128.cfm Additional guidance on the principles and values behind the assessment is available here: http://www.mediate.com/products/pg1129.cfm. What is critical to understand is that, whatever information Mediate.com reviews and considers for certification approval is the exact same information that will be transparently made available to the public. We will do our very best to treat applicants both as consistently and as flexibly as we can within the stated standards.

Question: Given that there are numerous (and often conflicting) models of practice, what will Mediate.com do to ensure that certification treats them all fairly and avoid privileging one over another?

Not only are there constantly changing and emerging models of practice, there are entire new mediation industries being hatched on an ongoing basis. For example, two years ago, few people thought of foreclosure mediation, or mass catastrophe mediation or marital mediation, yet each of these niches is now rapidly growing. Bottomline here: we are not even asking about models other than to confirm in all circumstances that the participants have complete decision-making power.

Question: What will Mediate.com do to ensure that the program advances and not hinders professional diversity?

This is one of the biggest problems with both the current system and contemplated skills-based assessment. Because of the uncertainties as to what indicates a competent mediator, the marketplace tends to turn to traditional indicators of professional competence, such as a law or some other advanced graduate degree. In fact, without other available valuable indicators, consumers and their advisers may select an attorney mediator based upon his or her reputation as a litigator or a retired judge who just came off the bench. These kind of “conservative” profession of origin selections make in extremely hard for minorities and young professionals to break into the mediation ranks.

At the other end of the spectrum, imagining that we could somehow develop a competent skills-based assessment, there is recognition by the ACR Task Force that the cost of face-to-face evaluation would be approximately $2000 per candidate. This was also found to have an undesirable impact on diversity and the development of minority professionals as mediators.

In sum, while one may criticize the Mediate.com Certification Program, I do not see a strong objection being that it favors any particular mediation model nor that it is overly discriminatory. In fact, we take great pride in the clear pathway we provide for mediators, over time, moving up the ladder to eventually become Mediate.com Certified as well as certified by other mediation practice area initiatives.

Question: What will the application process involve? What about fees?

Mediate.com is offering Certified Mediator Status to Premium Members of Mediate.com who Qualify as a “Senior” Mediator (see http://www.mediate.com/articles/review.cfm and http://www.mediate.com/articles/faq.cfm)

Mediators must provide and annually update complete practice information including: all degrees earned, professional background, mediation and professional credentials and affiliations, description of mediation training completed, description of mediation practice and approach, description of mediation costs and fees, specification of mediation case experience on a practice area basis, at least one recent picture, an indication of liability insurance or not, and maintaining an ongoing professional activities log of 12 hours of annual continuing education.

The Mediate.com Certified Mediator must also post links to three or more references prepared to vouch for his or her mediation work, or the Certified Mediator must indicate that references are promptly available upon request.

In terms of cost, one needs to be a Premium Member of Mediate.com to apply ($199/yr). Assuming this, there is a $150 certification application and first year fee. $50 is refunded if you are not approved. There will also be a $50/yr certification renewal fee.

Question: How will the program be administered? What kind of complaint and enforcement mechanisms do you propose to put real teeth into this certification program?

Applications will be acknowledged and responded to within 30 days of submission. This response will be an approval, disapproval, request for additional information, and/or a request for a phone interview with the Mediate.com CEO. Applications will initially be approved or rejected by the Mediate.com CEO. Applicants can apply for certification once per calendar year.

Applicants may make one Request for Reconsideration per application, which will first be considered by the Mediate.com CEO and then, if approval is still lacking, will be submitted to a 3 member committee of the Mediate.com Advisory Board. This committee may request additional information and/or request one or more phone interviews. Final action upon a Request for Reconsideration will be made within 60 days.

All complaints against Mediate.com Certified Mediators will be promptly investigated by Mediate.com. Certified Mediator status may be rescinded by Mediate.com for good cause.

Preparing mediators for practice: mediation training or mediation education?

mediation training raises many questionsRecently the alert I set up to monitor appearances of the keyword “mediation” in Twitter posts pointed me to the following message: “Just got back from Civil Mediation Training (30 hrs) to be a Qualified Neutral”. The message took me aback.

30 hours? To be a “qualified neutral”? Qualified? For what?

The persistence of the notion that 30 or 40 hours is sufficient time to train neutrals has long troubled me, a trainer of mediators. It is one advanced by court-connected mediation programs, some private training companies, and mediators themselves. It is even codified in law and court rule. But to be confronted in this way by someone’s certainty that 30 hours prepared them adequately to mediate civil disputes was jolting.

In the trainings I am involved with, we make it clear to participants that a basic mediation training provides an orientation to the field of mediation but that hard work and further learning lie ahead. The best students are those who come away with the humble understanding that they do indeed have a long way to go toward mastery. The ones who keep me awake at night are those who already have their business cards printed on the last day of the training.

My colleague to the north, Tammy Lenski, is clearly troubled, too. She writes:

Is there a qualitative difference between training mediators and educating mediators? I think so and I’m going to put myself far out on the limb here. No doubt one of you will want to shake me right off.

While training will likely always have its place in the ADR world, I’d like to see greater embrace of educating and less commitment to short-term, “let-me-call-myself-certified” training.

Training is traditionally concerned with the development of skills and preparation for specific jobs or roles.

Education is traditionally concerned with the development of the intellect, stretching and learning to use one’s mind.

Like Tammy, I have to wonder out loud whether it’s time for our field to look closely and critically at what it takes to prepare people to become effective mediators. I know that 30 hours or 40 won’t do it. But what kind, degree, and amount of training or education or practical experience under supervision – or some combination of those – will produce a competent mediator?

Mediate.com announces mediator certification program

Mediators must measure up for Mediate.com certification programAfter over a year of planning and development, Mediate.com, the world’s best known resource for information and news about alternative dispute resolution and negotiation, announced today that it has taken the wraps off a Mediator Certification Program for well trained and highly experienced mediators.

Mediate.com describes the program this way:

  • Mediate.com first ensures that our Certified Mediators are well trained and experienced.
  • We next insist upon complete information disclosure, including specific practice area case experience. This disclosure is accomplished through the Mediator’s Mediate.com Directory Listing, or a combination of the Mediator’s Directory Listing and their professional web site.
  • Finally, Mediate.com insists upon the highest ethical standards, disclosure of whether the mediator has liability insurance, and the mediator must have references available.

…Mediate.com requires that our Certified Mediators offer mediation as a voluntary process in which participants make all of the decisions. Our mediators are bound to ensure mediation confidentiality.

You can read about the values and principles behind the program or find answers to questions in the FAQs section.

What about clients? Time at last to consider what they want from mediation

Time to consider client needs in mediation

At the recent ABA Section on Dispute Resolution spring meeting, I attended one program whose title promised an answer to the fascinating question “What Do Litigators Want?” when it comes to mediator practices.

All well and good, but the question I was most interested in was very different: “What do your clients want? ”

Alas, I never got a straight answer, although the guy sitting behind me whispered his thanks in my ear and said, “I’m glad you asked that. I’m a client myself, and I can tell you right now, my lawyers don’t have a clue what I want.”

So what can we – attorneys and mediators alike – do to help clients choose and participate fully and meaningfully in the right process for them and their dispute? Here’s my modest proposal, with a tip of the hat to Joseph P. McMahon, Leonard Riskin, and Nancy Welsh:

  • Start with the premise that informed consent is vital for all participants – for lawyers, for clients, and for mediators. And let us all remember to whom the dispute and ultimate resolution belong – not the lawyers, not the mediator, but the client (remember them, anybody?).
  • Educate lawyers and other likely consumers of ADR services fully about the various philosophies of mediation practice, providing them with accurate information about the benefits and drawbacks of each.
  • Insist that mediators themselves be well informed about the varieties of practice in their own field so that they can in turn provide accurate information to prospective clients – and to journalists who come calling for interviews.
  • Develop better systems for intake, to include an assessment of the conflict that can guide the design of a process best suited for the parties and the issues and that identifies the parties necessary for resolution before scheduling the mediation.
  • Mediators can emphasize the importance of preparation to lawyers and their clients; lawyers can do their part to encourage their client’s knowledgeable, fully informed participation.
  • Allow clients full say in shaping the process and defining the issues to be sure that mediation addresses all the concerns relevant to them and to the resolution of their dispute, not merely the legal ones.

That would at least be a start. If you have other ideas, by all means, weigh in. I’m all ears.

(With apologies to the gang at everybody’s favorite client-centered blog, What About Clients?)

Facilitative? Evaluative? The struggle to define the practice of mediation

Recently I criticized a call by Stephen Erickson of the Association for Conflict Resolution to establish a certification system for mediators.  (Lively discussion ensued, and people have continued to weigh in, so please feel free to contribute.)

According to Erickson, facilitative mediation is “good” and evaluative mediation, by inference, is bad, since evaluative mediation undermines self-determination, a core principle of mediation practice.

I responded by insisting that we owe it to our profession to bring greater nuance to our debate about mediation practice and credentialing, and not privilege one style of practice over another, reducing the debate to little more than facilitative-good/evaluative-bad.

But my main point was that we mediators need to do a much better job educating the public about what we do and how we practice so that parties can make informed decisions about choosing the approach – facilitative, transformative, evaluative, narrative, understanding-based, or a hybrid of approaches  — that best fits their dispute.

However, just because we strive to be inclusive in discussing these issues does not mean that we check our critical faculties at the door.  Evaluative mediation certainly has its uses, but it does have its shortcomings, too, as Len Riskin and Nancy Welsh described recently in their article, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, since that approach allows the preferences of lawyers and insurance adjusters to dominate and  narrows discussion to legal and economic interests, while disregarding a whole range of other concerns — emotional, interpersonal, behavioral, community — that are no less integral.

Similarly, in “Moving Mediation Back Toward its Historic Roots – Suggested Changes” (in PDF), Joseph P. McMahon, Jr., criticizes the law-centered, “low functioning” approach to mediation that increasingly the legal community has come to accept, characterized by separation of parties with no opportunity for direct dialogue, a focus on monetizing the dispute, while legal issues take precedence over the parties’ own narratives and personal experience as the mediator-expert directs the parties toward settlement. McMahon advocates revolution, overthrowing one model in favor of another.  McMahon proposes a solution that restores face-to-face dialogue to its rightful place and returns power to the parties by engaging them in designing a process and an outcome that will best serve their needs.

Unfortunately, public perception remains otherwise.  In the popular imagination, the all-powerful mediator shuttles back and forth between separate rooms, controlling the flow of information between parties, and withholding food and drink (and maybe even bathroom breaks) while cajoling or pressuring the parties into accepting a deal.  This became amply clear to me over the weekend when Boston Globe Magazine profiled a local mediator.  Here’s the picture of mediation the Globe painted for its readers:

Here’s how mediation works: In a civil dispute, going to trial is always risky. Verdicts can either force defendants to pay astronomical amounts or leave plaintiffs without a penny. And so people often decide they’d rather settle — if they can agree on a price. The parties then choose a mediator — both sides must agree on the person — and the process begins, behind closed doors, with both sides stating their cases and demands. Then the mediator separates the two sides into different rooms and begins shuttling back and forth between them. If mediation fails, the parties can agree on another mediator, or the case goes to trial….In mediations, lawyers need someone with a sharp legal mind who’s not afraid to nudge, push, and just plain tell people when they’re wrong…

It’s all there – the shuttle diplomacy behind closed doors, the focus on price, and a process conducted within the long shadow of the courthouse as lawyers wheel and deal. Go read it for yourself. Plainly this tough-headed mediator has earned the title “closer”, brokering deals and producing settlements of the economic and legal issues (if not, perhaps, the less tangible ones). All well and good if that’s what lawyers and their clients truly want – after knowing all the options.  But how can we be sure that the public appreciates the difference, when even journalists – trained, professional observers – miss it?

And so I must also ask – can we really call this “mediation”?

10 ways to botch a mediation

10 ways to make negotiations break downOne of the latest arrivals on the mediation blogging scene is The Strategic Mediator, published by Florida-based ADR firm Upchurch Watson White & Max.

A recent post that caught my eye was this one: “Top 10 Ways to Botch a Mediation“, a comprehensive list of surefire ways to sink any assisted negotiation that includes one surprise – arriving for the mediation covered in your pet’s hair.

The Strategic Mediator is the latest addition to ADRblogs.com, my ongoing project tracking blogs globally that discuss ADR, negotiation, and conflict resolution.  Please let me know if you have a blog you’d like to submit for inclusion in ADRblogs.com. Read the submission guidelines and then get in touch.

Getting out of neutral: a fresh look at mediator impartiality

time for mediators to shift out of neutralEfforts here in Massachusetts to enact the Uniform Mediation Act have run aground. Deadlocked over one vexing question – how to define a mediator  – the MassUMA Working Group (as those of us involved most directly in those efforts  call ourselves) is poised to take some time off to regroup and rethink.

An active member of MassUMA since its founding in September 2006, I’ll provide a post mortem here some time down the road. But probing and weighing the UMA has produced questions beyond the one that has confounded MassUMA participants. Although I support the UMA (the original version drafted by the National Conference of Commissioners on Uniform Laws and not the one my MassUMA colleagues proposed), one of these questions in particular has been nagging me. Here it is.

Section 9(g) of the Uniform Mediation Act states that “A mediator must be impartial, unless…the parties agree otherwise”.  What on earth does this mean? How can anyone actually be impartial – particularly with so much evidence from cognitive psychology and the social sciences to indicate that it is not humanly possible to be free from bias?

Recognizing this problem, the Commissioners on Uniform Laws placed brackets around Section 9(g) “to signal that it is suggested as a model provision and need not be part of a Uniform Act.” Some of us in the MassUMA Working Group would have been happy to comply and dispense with this provision, since its violation bars the mediator from asserting a privilege for a mediation communication. Others, however, argued that impartiality is essential to mediation, among its defining qualities, and therefore wanted the provision to remain.

But the question stands: how can anyone ever be impartial? How can we reasonably, rationally expect it of anyone – and make the ability to claim a privilege conditional upon it?

And then I read the message mediation giant Lee Jay Berman posted to an ADR listserv, which barrister and mediator Geoff Sharp helpfully published on his blog.  Berman muses about impartiality and concludes that it is no Holy Grail but only fallacy. He describes instead a wholly different quality he seeks to embody at the mediation table:

When I think of neutral, I think of a car revving as loud as it wants to, but with no ability to move forward.

When I think of impartial, I think of driving the car down the middle of the road and keeping it from going too far to either side.

But how I see my role is what I call Mutually Partial. I see myself as a coach for each participant, helping them get as much of what they came for as I can. I am partial, when caucusing with the plaintiff, in helping them strategize to maximize their take-away, and to make sure they’re getting EVERYTHING they came there to get (non-economic, emotional, closure, big picture of their life, etc.). I am partial when working with plaintiff’s counsel to get what s/he wants (money, reputation, referrals, etc.). I am partial when caucusing with the defendant as I help them to strategize how they play their given hand of cards, evaluate their risks, consider their overall big picture and making sure they have what they need in their file to support the settlement they’re authorizing. I am partial when working with defense counsel to ensure that they strategize and counsel their client well, that they look good, and get a settlement that they can recommend at the end of the day. I help people find their reasons for doing what they need to do to settle. I serve as a negotiation coach more than a message carrier. I lend my expertise and creativity as I offer them options and choices. I clarify for them all what’s going on in their negotiation from my neutral view. Basically, I help everyone come out of it OK.

So, I am not neutral. I never claim to be. If I were neutral, I could not offer them as much value as I do. I just offer it mutually.

Exactly. Well said. So, what do you think, mediators, are you ready to shift out of neutral? It’s what being in the driver’s seat is all about.

Interviews with ADR giants: Mediate.com opens video archive for month of April

Mediation videos available free during AprilMediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

Available at no cost are over 100 fully searchable video interviews with leaders in the field of dispute resolution – notable names like Roger Fisher, Carrie Menkel-Meadow, Len Riskin, Margaret Shaw, Chip Rose, Frank Sander, Kenneth Cloke, Jeff Krivis, and many more.

Both full interviews and searchable video clips are available for viewing, so don’t miss this extraordinary opportunity to listen in as ADR movers and shakers share insights with interviewer Robert Benjamin.

Defending the caucus: the benefits for parties in facilitative mediation

Closed door meetings for mediation clients encourage candor, reflectionRecently the mediation caucus – meetings in private between the mediator and one side to a dispute – has come in for some harsh criticism. Dismissed as “shuttle diplomacy” that keeps parties in the dark about each other’s interests and places full control over the flow of information in the hands of the mediator, the caucus has been derided as an inadequate tool for the facilitative practitioner.

The problem with the caucus – a practice commonly associated with litigated or commercial cases in which the mediator shuttles back and forth between separate rooms, conveying offers and counteroffers – is that it thwarts one of the important benefits mediation confers – the ability for those most intimately familiar with the details and history of a dispute to be directly involved in its resolution. The caucus can also shift the role of the mediator from neutral to advocate or agent for the parties. There is also the risk that the mediator – who is only human after all – may inaccurately convey information. Direct communication between the parties, from issue identification to problem-solving, can be the most productive and efficient way to reach resolution.

Yet despite these admitted shortcomings, it’s time to restore the caucus to its rightful place as a time-honored tool used “to facilitate communication between parties, to assist in identifying issues, and to promote a mutually acceptable settlement”, as lawyer and mediator Stuart M. Israel has written (PDF).

In my own experience, the caucus offers much to redeem itself and can be used, for example, to

  • Encourage honest discussion and full exploration of goals, concerns, and interests
  • Assess candidly the benefits, costs, or risks involved under various scenarios
  • Allow parties to safely let off steam or vent without the negative fallout that might result otherwise
  • Let parties digest unexpected or painful revelations in private to save face
  • Mediate within the mediation, addressing differences in expectations or interests between participants on one side of a dispute or between an attorney and the attorney’s client
  • Enable a mediator to regain a party’s trust in the event a mediator has inadvertently committed a misstep (even the very best mediators can err)
  • Permit parties to creatively and uninhibitedly explore the full range of potential options for settlement or resolution
  • Realistically weigh options on the table against the best- and worst-case alternatives to a mediated agreement
  • Provide a cooling-off period for angry or highly emotional parties or give parties a break from each other in particularly stressful cases
  • Create safety for one party to express concerns about threats of violence, abuse, or coercion at the hands of the other party

This last one is an important consideration for those who mediate family cases. Once, during a caucus in a divorce mediation, the wife revealed to a colleague of mine that the husband had threatened to kill her. Although this colleague conscientiously and thoroughly screens for domestic violence, these kind of unanticipated revelations can emerge despite careful intake. At that point the mediation ceased to be a mediation, and my colleague’s efforts focused on getting the woman to safety. Without this private meeting with the client, this mediation could have produced tragic results.

Like any tool, the caucus can be misused or do harm, but that is no reason to discard it. Like any tool, in the hands of the skilled craftsperson, it can also produce impressive results. Let’s restore it to its rightful place in the mediator’s toolbox.

Photo credit: Fran GC.

Thinking outside the pie: using mediation is no compromise

Think outside the pie with mediationYesterday I discussed an article on mediation that appeared in USA Today, dismayed by its depiction of mediation as a free service provided by volunteers.

But that was not the only problem that caught my attention. The article also quoted a critic of mediation who mistakenly charges that mediation “is a ‘terrible idea’ because it presumes the victim must accept some kind of compromise.”

Here is yet one more misapprehension that the public has about mediation – that the best outcome it can produce is compromise- a split-the-baby result that leaves all parties equally dissatisfied. This tells me that we mediators need to keep at it, countering and correcting these misunderstandings.

Let’s keep on getting the word out there that in mediation, disputants don’t just divide the pie, they can expand it. Ask yourself, is your negotiating style leaving value on the table? If so, you just might want to ask a mediator for help.

Meanwhile, maybe we mediators need a new motto – something along the lines of “We don’t compromise when it comes to helping you negotiate.”