The Mediator Told us what to do

In my last post I discussed one reason parties in a mediation can’t reach a mutually agreed upon outcome. Another reason I would like to discuss is a misunderstanding of what the mediation process is.

This past week I began another class for individuals interested in becoming volunteer mediators in California Small Claims Courts. After a brief introduction emphasizing that mediation is a process where disputants resolve their conflits with the help of a neutral third party, I usually ask the group what experience they may have had.  Typically, some have heard of or have had some experience with Family Court mediation and very few with mediation in other settings.

One person said she had had a terrible experience with mediation. She said she felt that the mediator was not neutral and was forcing her into an unfair settlement resulting in bad feelings about the entire process. She described the mediation as a failure and admitted to conflicting feelings about becoming a mediator herself because she wanted to help others reach agreements, but didn’t want them to have the same poor experience she had.

With that, I decided o take the time to discuss two problems I felt had occurred during her mediation.

First: Standard One of the Model Standards of Conduct for Mediations is “Self-Determination.” A mediator must conduct mediation based on the principle of participants coming to voluntary and uncoerced decisions regarding process and outcome. That means that participants must have an understanding and accept the process the mediator exercises.

There are several styles of mediation, but perhaps the two major styles are Facilitative and Evaluative.  In the facilitative style, the mediator employs a process to assist the parties in reaching a mutually agreeable resolution by asking questions and helping parties find and analyze their options. The facilitative mediator does not make recommendations nor give advice. I often describe this style as “the mediator owning the process; the disputants owning the conflict.”

The evaluative process is modeled after settlements conferences held by judges where the mediator points out weaknesses in the parties’ cases and predicts what a judge or jury will likely do. In such a case, the evaluative mediator directly influences the outcome of the mediation.

When I asked my student if she’d been informed either in an agreement to mediate or in what the mediator said at the beginning as to how the mediation would be conducted, she said she had not. That was problem #1.

Second: Standard One also makes it clear that self determination includes that either party may withdraw from the mediation at any time. I asked my student if she understood that she could stop the mediation. Her answer was clear, “No, had I known that I would have stopped it. I was forced into an agreement I didn’t want.”

That mediation did not result in a mutually agreed upon outcome. We’re yet to see if the mediator's highly influenced decision was accepted and implemented. No matter the result, she certainly isn't motivated to accept it.