Mediation is finally being given the attention it deserves as a positive alternative form of conflict resolution. The problem now is not how or why, but whom? As the emphasis on resolving interpersonal conflicts through mediation increases, so too does the competition among the two primary fractions for a piece of the mediation pie. The following is a summary of who could contribute the most to mediation.
There are, at present, two main parties that have the largest stake in the future of mediation. The first is lawyers who have transferred their abilities from the legal profession to mediation. The second is individuals who have received mediation training outside the legal profession. These parties will be referred to as legal and non-legal mediators respectively. The situation that has developed is one where legal and non-legal mediators are engaged in conflict over who is most capable of practicing effective mediation. It seems ironic that those who profess their capabilities of resolving disputes in the personal and public world cannot resolve conflict among themselves. Let’s explore the reason for this view.
Firstly, one of the cornerstones of mediation is that each disputant is given the ability to solve their conflict with the assistance of a mediator. Lawyers pursue the best interests of their client, not necessarily involving the clients. For this reason, legal mediators may find it difficult to ensure the best interests of all disputants in a conflict.
Secondly, while lawyers focus on the interests of their clients through a rights-based prism, mediation focuses through an interest-based prism. Lawyers are dedicated to upholding the laws that govern the conduct of individuals in their respective countries.
Mediation focuses on the interests of each disputant; what each disputant wants out of a settlement. Again, lawyers may face a greater challenge in ensuring the well being of each disputant.
Third, mediation is about empowering people to become their own problem-solvers. Lawyers in the traditional sense are not attempting to empower their clients, only to represent them in court. Representation does not assist disputants to resolve conflict among themselves.
Finally, mediation by nature is a non-binding process; it has no precedence on formal litigation. A party involved in a dispute may perceive the presence of a lawyer to signify a binding or official nature of mediation, thus disempowering the disputants from resolving the conflict for themselves.
Having briefly illustrated the argument against legal mediators from pursuing mediation, there are ever-growing numbers of individuals graduating from law schools who are dedicated to mediation. The skill and expertise of these individuals should not be discounted.
Legal and non-legal mediators can coexist in a positive way to ensure the continual growth and prosperity of the mediation field. What are needed are open-minded individuals of both sides to listen to each other and create a resolution that is unique to the current situation. As a mediator, it is my hope that a resolution can be found.
Submitted by Cory Harris
History has always been a great teacher
The following story illustrates the present debate between legal and non-legal mediators.
A long time ago in an ancient land, two women came before a King to tell him of their problem. These two women lived together in the same house and both had young infants. One of the women, argued that while she was asleep with her infant, the other woman’s child had died and that she had switched the children. Upon waking the first woman thought her baby had died but after close examination of the dead infant realized that this was not her baby.
The second mother denied this and argued that the first mother’s child had been the one that had died. And so they fought over who was the rightful owner of the living child of the King.
Unable to decide who was telling the truth, the King ordered that the baby should be split in two. One of the women pleaded with the King not to split the child but give the child to the other mother, while the other mother insisted on splitting the child.
The response from the King was to not split the child and give the child to the woman who had pleaded for its life because she must be the child’s mother.
Mediation can be seen as the child while the mothers are the legal and non-legal mediators arguing other the child. Thus far, neither party has pleaded for the life of the child and the decision must be made soon whether to split the child or not. Much time has passed since the time of the King’s decision. Maybe there is a way that both mothers could share the child named “Mediation.”