MEDIATION: 25 YEARS OF
CONSTRUCTIVE PROBLEM SOLVING
When I completed my training in mediation in 1981 there was not a book on mediation in Rochester. Although the concept of mediation has been informally practiced from the beginning of time, as a problem solving process, it was essentially an unknown quantity in any formal way in Rochester.
Now the term ‘win/win’ is common to our everyday language. There has been, in a very short time, a significant, positive paradigm shift in the way our society goes about problem solving. As a professional mediator and trainer I have had the satisfaction of being a part of this.
The traditional mode has been adversarial. In the event parties cannot settle a dispute by discussing it (negotiation), the disputants typically each retain an attorney. The attorneys each advocate for their client before a judge or jury and ‘justice’ takes place when the judge or jury renders their verdict. This is a good and appropriate process for criminal matters and disputes that are primarily not interpersonal.
For interpersonal disputes the adversarial model has unintended, negative consequences for the stakeholders. Although the judge or jury typically provide ‘just’ verdicts, it turns out that, in most disputes, the adversarial nature of this approach creates additional problems for the disputants.
In the first place, the verdict, determines that there must be a ‘winner’ and a ‘loser’. In most interpersonal disputes neither party may be entirely right and the other wrong. Second, the win-lose process itself can have profoundly negative effects upon the disputants.
Mediation, on the other hand, is a collaborative process where the parties, with the help of a trained, experienced, professional facilitator, sit down together to work through these issues.
A graphic way of looking at the change in paradigm is to see people come away from their entrenched, adversarial positions to sitting on the same side of the table and saying, “we have a problem. How can we work collaboratively, based on our common interests to solve the problem.” If they cannot do it themselves, they can enlist the help of a professional third party, help them solve the problem while retaining the collaborative mode.
The passage of divorce illustrates. The parents contest custody of their children. In the adversarial process each attorney, in court, must show the judge/jury the other parent’s flaws. It is drawn out and costs thousands of dollars. The negative fact-finding by each attorney about the other in a public venue escalates hostility and thus impairs the parties’ ability to parent their children in the future. It decimates their finances.
The paradigm shift is from adversaries who each want to ‘win’ and cause the other to ‘lose’ to collaborators who, based on their common interest (the welfare of their children) want the best for their children. The parents are, after all, the people best equipped to be making decisions about their children. The children get caught in the crossfire. The children will need both parents involved in positive ways in their lives in the future.
Even though most disputes do not go to court, two attorneys are still actively involved as advocates, whether the issues are custody, child support, spousal maintenance or property. The adversarial nature of the process and the high cost ($10,000 – average) make the traditional, legal approach unacceptable for the passage of divorce. The costs (including separate legal review before signing), are reduced by two-thirds and the parents have protected their children from being caught in the middle of a protracted adversarial process.
One of every five divorces in Monroe County is now mediated. The feedback from hundreds of couples over many years points up the validity of the process.
Not all divorces are suitable for mediation. There are now some attorneys who genuinely wish to work collaboratively in conference with their clients. This is a new and positive alternative for highly conflicted couples. Although more expensive than mediation, it is much less expensive and more constructive than litigating.
This fundamental paradigm shift from adversarial to collaborative problem solving is now being applied to conflict resolution in every area of life – faith communities, business, education, not-for-profits, environment, and international relations. Most schools now have ‘peer mediation’ programs where kids learn the skills to help other kids who are in dispute.
It is exciting to envision a society where people will reflexively think of collaborating in problem solving rather than being adversarial. There is no reason that, with increased public awareness, the next 25 years can move substantively toward this goal.
