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.

Years ago I received a request to mediate a dispute involving a young couple who had begun divorce proceedings and needed help dividing up their affairs. They had received advice to first work with a mediator and then have their attorney formalize their agreement.

I normally don’t do divorce mediation, but agreed to help the couple. Their property was modest, their debts large and their emotions intense. The couple wanted to spend some of their time going over what had gone wrong in their relationship. They had a heated, yet satisfying and necessary, discussion about feelings of infidelity and reckless spending. After saying to one another that each no longer wanted to be in the relationship, nor attempt to reconcile it, they were ready to move on to dividing their property and debts.

It didn’t take long to deal with equity in their home, two automobiles, various expensive recreational toys, household goods and then their credit card debt. Finally, one said to the other, “But who gets the dogs?”

In almost every state pets are considered property, but their value as property doesn’t reflect their personal value, which is often priceless and irreplaceable. In some court cases, judges have actually put the dog with both parties to see who the dog would run to. Some courts have recognized the bond between a child and a dog and have ordered that the dog follow the same custody schedule as the child or award the dog to the parent who gets the most parenting time. When there are no children, some courts have ordered one person to “buy” the dog from the other.

In what was the most lengthy part of my mediation the couple finally decided that one would get two dogs who were brother and sister and the other would get the third dog. But, interestingly, while the two really had strong negative feelings about each other, they were able to work out a visitation schedule so that all three dogs could spend time together.

That mediation showed me that even parties who have strong negative feelings towards each other can work out a solution about something they both care about deeply. In this case, their four-legged companions.