Court-Ordered Mediation: Effective?

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Is mediation effective when court ordered, even if the parties don’t believe in potential benefits?  It depends on a number of factors:

• the SKILL of the mediator
• the WILLINGNESS of participants to negotiate in good faith
• the AVAILABILITY OF CREATIVE OPTIONS for resolution.

The skill of the mediator is possibly the biggest factor in whether the negotiation is successful. How well does the mediator understand the subject matter of the dispute? Have they successfully dealt with this type of mediation in the past? In a commercial or industry dispute, are they familiar with the vocabulary of the trade and the stated and unstated professional standards and protocols? In domestic mediation, is the mediator familiar with the court-approved paperwork and the various support roles (parenting coordinator, child family investigator, decision maker, and arbitrator)? Some have the opinion that a skilled mediator can facilitate resolution in any type of dispute, whether or not parties are represented by legal counsel.  I disagree.  A close match between the nature of the dispute and the mediator’s background, training, and experience provides insight into the possibilities and pitfalls of various options for resolution that are generated in mediation.

Willingness of participants to negotiate in good faith is essential for successful mediation.
As a case administrator and practitioner of both arbitrations and mediation, I’ve observed a pattern of resistance behavior from parties who resent being “forced” into these venues: No money, can’t find the time, a history of last minute cancellations or continuances, demonizing the other, didn’t get the message, etc. While some of these assertions may have validity, people often find a way to do what they really want. The goal for resolution may be clear to each party, but the best path to achieving the goal may be the unknown. Mediation is a newer path, so many people don’t know what to expect. Participants in mediation can expect that they will have

• A greater understanding of why the dispute exists. The WHY is often a huge question: why won’t the other just be reasonable?
• Mediation is useful for generating options of various resolution possibilities. After generating as many choices for resolution, which ones are worth developing and which ones should be discarded?
• The ability to evaluate what might be an alternative to reaching agreement in the context of mediation. Does a better alternative exist?
• A plan for future conflict resolution – what happens if things go ok for a while and then we end up back in the same place? A comprehensive Memorandum of Understanding (MOU) identifies a plan that everyone agrees to before the next upset.
• Legal Review paragraph if participants are unrepresented by attorneys during mediation. Even if the parties agree, their attorney must have the opportunity to review the agreement before submitting to the court to make the agreement into an order. The MOU becomes legally binding when the court approves its terms.

The availability of creative options is mandatory for resolution.
However, available options aren’t always apparent when in the thick of conflict. A skilled practitioner can often discover alternatives that the parties have not yet considered. Sometimes this is because the mediator is neutral (neither gains nor loses anything from agreement of the parties). Neutrality fosters objectivity, allowing the mediator to think of possibilities. Sometimes options are generated because a mediator has enough experience to know what to suggest as a possible strategy. If mutually agreeable resolution can’t be found, the court will make decisions in the matter that may or may not please the parties. These decisions are generally straight forward and win/lose – the least creative way to meet the needs of at least one of the parties.

©2007 Judy Larkins