I’ve been asked how to help people get into a constructive mindset for mediation.

I can’t tell you how many participants go into a mediation session with the sole intent of telling the other party exactly what they think of them. Some even rehearse the abusive and venomous language they plan to use in order to blame and hurt the other party. Let me make it simple and clear: No meditator will allow either of the parties to inflect harm with abusive language. That won’t happen. The mediator will either call for a recess or terminate the mediation altogether.

I tell people learning mediation to imagine asking each disputant in private who they think is in the “right” and who is “wrong.” Of course, you can imagine that both disputants are firmly convinced they are the ones in the “right”

People who do Small Claims Court mediation will tell you that there are some people who refuse the option because they absolutely are certain that when they present their side to the judge, they will of course agree with them and they will prevail. And these people are absolutely, totally convinced they are correct about this. Small Claims Court mediators will also tell you that those same people are usually shocked to discover that their judge is more likely to see both sides of the dispute. And they usually leave the court quite disappointed that the judge couldn’t see what they considered to be the obvious point of view.

Coming into a mediation the parties must accept the fact that their adversary has reason to believe they are also “right.” The mediator is not there to decide who is “right” and who is “wrong.” Nor are the parties in mediation there to persuade their adversary that they are “wrong.” Who is right and who is wrong doesn’t really matter in mediation because, in one sense, they are both right. Going into mediation with the mindset that an openness to understanding your adversary’s position will ensure a much smoother and realistic outcome for all.

It appears that news reports on mediation are increasing, which may reflect a growing awareness and acceptance of the practice. Two recent examples demonstrate how mediation is increasingly being used in high profile disputes.

The first has to do with face masks. In an executive order, Georgia’s governor Brian Kemp has strongly urged, but did not mandate, that people wear face masks to help stem the spread of the Coronavirus. His order also suspended any local rules more restrictive than his own, including the mandate of mask wearing. However, several local jurisdictions have ordered people to wear masks in many public places.

This has lead to a lawsuit being filed against Atlanta’s mayor, Keisha Lance Bottoms, and members of the city council arguing that local authorities do not have the authority to mandate more, or less, restrictions than the governor’s orders. Governor Kemp’s lawsuit asks the court to block the city’s orders and prohibit Mayor Bottoms from making public statements asserting that both she and the Atlanta Council has such authority.

Fulton County Superior Court Judge Barwick ordered the two sides to mediation to “make a good faith effort to resolve the issues involved in the case.”

The second is about racial equality. In Mankato, Minnesota, the School Board posted a photo of six members of the board with the district’s superintendent. The photo excluded the board’s only Black member. That board member asserted that the photo was but one example of, “intentional exclusion,” and systematic racism by his fellow colleagues.

The school’s superintendent acknowledged that the photo should not have been posted on the district’s website regardless of why one board member was not represented.

The omitted member requested that the board use the Bureau of Mediation Services to deal with the conflict. Multiple members issued statements supporting working toward racial equity on the board and in the school district. 

Will mediation be helpful in these and other high profile disputes? In many such cases, external parties have high expectations that the approach will be successful. However, as with all mediations, it is only the disputing parties themselves who must decide on the outcome and if, for whatever reason, mediation did or didn’t meet the expectation of each.