ONE REASON MEDIATION IS MISUNDERSTOOD
A recent Sports Illustrated posting under the heading, “Why Mediation Was Unlikely to Work Now and What Comes Next for USWNT, U.S. Soccer,” focused on the pay dispute between U.S. women soccer players and U.S. Soccer but also discussed mediation in a way that continues to contribute to the public misunderstanding of what mediation is.
As explained in the article, the mediation failed and the parties will be returning to U.S. District Court. The author states that mediation can be helpful in bringing parties together for face-to-face discussions with a skilled mediator who listens to both sides, analyzes relevant evidence, evaluates testimony and data and “then offer an informed and reasoned resolution” to bring the parties to compromise. The author then continues to contend that mediation is limited because the mediator lacks the authority to mandate a resolution.
Unfortunately, the author has contributed to the public’s confusion as to what mediation is. There is more than one style or way of doing mediation.
The two most commonly used forms are Facilitative and Evaluative.
In the Facilitative style, the mediator stresses self-determination, that is, that in mediation the parties must reach their own solution. The mediator is skilled in helping the parties develop a solution that works for them by asking questions, helping the parties understand each other’s interests and supporting the parties developing settlement options. The facilitative mediator does not recommend a solution based on evidence and testimony.
In Evaluative mediation, the mediator may point out weaknesses in the parties cases, may predict what a judge or jury might do and may make recommendations to the parties as to possible outcomes. While the evaluative mediator influences the outcome of the mediation, the they do not make any decisions for the parties. The parties alone make the decision.
The author of the article seems to assume mediation is non-binding arbitration, that is, a process where a third party listens to arguments, and makes a recommendation that the parties may accept or reject. The author then goes on to describe the extensive, time-consuming and expensive process the parties are likely to undergo as they prepare for court, but then predicts that a pre-trial settlement is likely. What the author has really described is a failure of the U.S. court-based dispute resolution process that is time-consuming and expensive. As Abraham Lincoln wrote in 1860, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time.”
Of course, I’m asked if the soccer dispute could be resolved using mediation. My answer is simple: When and if the parties are ready to settle, mediation will work.