As I teach and train on the topic of mediation, I extol the virtues of process. I repeatedly emphasize that, to be successful as a peacemaker, individuals need to study and adopt a process that will help them and the parties at their mediation table step forward through the conflict. I believe this. I’ve seen it work more often than not.
But the practice of mediation is part of a larger system that is built on the following framework:
- Attraction and recruiting of individuals with a heart open to resolving conflict on a personal level
- Effective training of potential mediators in process, communication skills, and techniques coupled with the willingness of the trainees to adopt best practices
- Refusal of mediators to take shortcuts in the mediation process and a dogged determination to keep ethical practices in the forefront
- When mediation participants refuse to honor their agreements, an enforcement mechanism to ensure the integrity of the resolution
Thus, we need the right people with the right training to do the right thing at their mediation tables. And, if the parties renege on their agreements, we need a ready way to bring them back into compliance.
From time to time, I receive calls from individuals who are displeased with their experience in mediation. In virtually every conversation, items 1 through 3 above emerge. If the caller is accurate in telling me their story, they had the wrong person as their mediator. That person was often trained poorly or, as more often is the case, refused to accept the wisdom of their trainers. As a result of attitude or lack of preparation, the mediator violated ethical rules — most often the one about allowing the parties to make decisions without coercion. The most common complaint I hear is that the mediator “forced me into the agreement.”
Yes, I’m a realist. I know that some of these people weren’t coerced into an agreement. But I do believe that most perceived that they were forced. If we expect mediation to continue as an effective means of conflict resolution, we must deal with those perceptions.
I would encourage mediators and those who train mediators to look carefully at those first three notches on the mediation door post. We need to ensure that our profession continues its evolution as one of the most effective resolution methods ever known. To do that, parties to mediation must be satisfied — not necessarily with the outcomes, but with the processes and systems that serve as the foundation.
Yesterday, I received a call from an individual who apparently was the victim of the failure of all four elements of the mediation system. Her last comment to me stung. “So you mean to say that I can’t do anything about the mediator? And, since I can’t afford an attorney, that I can’t enforce the agreement against the other party?”
After a little more thought, I will address the fourth element of this mediation conflict system — enforcement of agreements. It seems to me that recent moves from the Texas legislature and the Supreme Court have addressed the wrong side of a problem by allowing limitations on mediation. Perhaps we should all take a closer look.