Mediation, first and foremost, is a form of conflict resolution. Usually, it has advantages over the more familiar legal formats of trials and arbitrations, or even informal negotiations. It's a formal process by which any individuals who have a dispute or disagreement can work it out -- with expert help.
The American Heritage Dictionary defines "resolve" -- the root word of "resolution" -- in several ways:
- "To cause a person too reach a decision;"
- "To bring to a successful conclusion;"
- "To find a solution to, solve.
Mediation is all the things listed above.
Not at all. Anyone who has been through a courtroom battle can tell you that there is a cost for this method far beyond the price tag in dollars. The outcome does not feel like a solution, still less a resolution. There is always at least one loser, and naturally they feel battered and beaten -- because they are.
The winner, however, usually feels beaten also, as soon as the initial sense of triumph wears off. The emotional toll of battle rests on all participants -- and there are lawyers fees to be paid, and often long delays such as appeals for the "winner" to wade through. Unless the loser is a very large, very wealthy corporation, there may never be payment of the monetary awards trials give. And trials ONLY render monetary awards, whereas mediation solutions are limited only by the creativity of the participants.
A perhaps more helpful definition of "resolve" is the ones which comes from music -- where to "resolve" is "to move from dissonance to consonance." Dissonance feels edgy, incomplete, or "off." Consonance arrived at feels (and sounds) good, and final. An example is when the bar of music comes home to rest on that final note or chord. "And the home of the... free." We feel a sigh of relief come over us. "Aaah." That is how "resolution" feels in human affairs.
The word "decision," however, come from "decide" which started out in Latin meaning "to cut off." A decision reduces uncertainly -- by cutting off additional options. How you will feel after a trial is, very likely, cut off. Your options may well be the ones removed, cut off, from the outcome! And if yours aren't, some one else's will be. The results of this are anger, hurt, frustration, and other harmful feelings which inevitably remain after a trial. Lawyers seldom discus feelings, but they exist in any case, and clients can't escape them!
Lawyers joke that in a good settlement (compromise) there are two equally unhappy parties! This is because the essence of compromise is that both parties give up what they want. In fact, one of the definitions of "compromise" is "a concession to something detrimental... [e.g.] a moral compromise." No wonder, then, that such a solution does not involve both parties getting what they want -- at least in part. In fact, the dance of negotiations involves people lying about what they really want -- so that what they end up losing is not that!!
Not necessarily. Trials and legal solutions are all based on fearful expectation. "If I don't do this or that, something bad will happen -- I will lose something important to me." They assume loss, and attempt to avoid it by maneuvers. Unfortunately, all such expectations tend to be self-fulfilling in a zero-sum game. One party simply must lose, and there are other, hidden losses, in the system. Like lawyers fees, ill will engendered by fighting, and the like.
Mediation assumes the possibility of:
The tools used are tools which permit and encourage this to occur, and it does occur.
- expansion of choices,
- genuine communication of problems, desires, and viewpoints,
- improved outcomes and
- actual benefits to both parties.
It is not a fear-based system. Both people do have to change their perspectives for gains to be made -- but there is no loss inherent in seeing something from a new vantage point! There is also no aftermath of ill will, as there is no battle. Thus, there can be resolution without loss!
Mediation is particularly effective for situations where there is an ongoing relationship between the parties -- as in post-divorce parenting of young children, long-standing friendships, or neighbors.
What actually happens in the mediation session is:
- parties and the mediator speaking and discussing
- all speak one at a time
- all parties being heard,
- all parties and the mediator listening with great care,
- clarification of all expressions so all may understand,
- development of many possibilities as to outcome,
- exploration of creative options brought to the table by the parties.
There is no decision, choice, or option imposed by the mediator -- or by anyone. As a result, there is more creativity, more possibilities, more choices, more that benefits all concerned-- and good will can result. No one loses.
The mediator is a guide for the process. The mediator's job is not to be part of the conflict, and to become clear about what the parties are saying and what they are seeking to accomplish. This makes it easier for the mediating parties to be clear and see their own options themselves.
How the mediator does this is:
- setting ground rules,
- clarifying statements, question, and suggestions,
- speaking to each party privately if necessary,
- maintaining a balance of power between the parties,
- keeping the goals and aims of the process in mind and,
- keeping the parties focused on that outcome.
Even in mandatory mediation, the parties routinely describe the process itself as satisfactory. It is clear that avoiding a battle, even one fought only with words, is a tremendous benefit to all concerned. Those who see court-ordered mediation as a lesser of two evils, however, still find that some of their goals can be accomplished in this peace-building process.
But for those who can break out of old habits of thought, mediation entered into with a clear focus on a loftier goal -- a genuine winning experience -- can come away with transformation. That is, with different feelings (reduced frustration and anger), improved hope for the future of ongoing relationships, and tools for future communication and resolution.
Mediation lacks drama, so it has never been on television. But drama is fine for entertainment -- far away from the pain of living it in actuality. Just as we enjoy watching real-life television rescues, most of us would prefer not to be in one! Courtroom scenes are riveting on the small or the large screen -- but the grubby world of legal battles is just as different and just as unpleasant as the real crash you are in. And just as driving defensively and avoiding that smash-up will never make it to the screen, neither will mediation.
In addition, in our society, we are deeply routed in seeing things as either/or. Either win OR lose. Even our sports are this way -- only the lonely long-distance runner knows the joys of self-propelled "wins" against his/her own goals. We somehow forget that if each encounter MUST generate a winner, it also must, with equal certainly, generate a loser. In any ongoing relationship, this means that loss is constantly in the equation. And loss erodes trust, and destroys ability to relate. So it is not the best solution in any case where relationships could or should be preserved, enhanced, or maintained. And while we can, possibly, all enjoy the mock battle of sports, few (other than attorneys) enjoy the mock battle that is litigation -- as most find out when it is too late!
Actually, no. A trial has a goal -- of determining a winner. There will be a winner, and the process of the trial is a dance for which the steps have already been painted on the floor. Step One -- file a complaint, Step two, serve the complaint -- and so on.
On the other hand, mediation is a process -- and mediator simply manages the process using simple, highly effective tools. In fact, if one were so inclined, one could use these tools outside of the mediation room, and many effective communicators do.
No. Other than setting a priority to use a small amount of time and funds to give the mediation process a chance, one has nothing to lose and a great deal to gain from going through the process. The familiar combat methods, with their foreordained result of making at least one party deeply unhappy, will still be available. Whatever you find out in the mediation process will be useful. On the other had, nothing either party says can be used at a trial, so whatever you -- or "they"-- learn will be for your benefit only in being better informed.