When asked where does one learn mediation skills, the answer is usually “Find a community center or university that offers a class.” That answer, though, really doesn’t reflect reality.

Writing to attorneys, mediator David Henry wrote that “Mediation is a dark art… Lessons learned in mediation pass only by word of mouth, and due to confidentially concerns, have to be sanitized, generalized, and abstracted… Mediation occurs in a black box where there is no public viewing.”

One way to learn from mediators is the book Stories Mediators Tell edited by Eric Galton and Lela Love, published by the American Bar Association Dispute Resolution Section. In the book, twenty-four mediators tell stories about their sessions. Some are inspirational, some tragic, some funny, and some tell of missteps the mediator made. In a sense, mediators have passed on stories of how to do mediation for centuries and the stories in this book continue that tradition.

One of stories was shared by Ben Cunningham, a mediator in Austin, Texas. A young woman on her bicycle had been killed in a tragic accident involving a truck. The mediation was with the father of the young woman, the driver of the truck, and their attorneys. Ben created an environment where he made it possible for the father to talk about his daughter and for the truck driver to express sorrow and apologize. At one point, he encouraged the attorneys to exit the room leaving the two parties alone. When they came back in the room the parties were still talking. Then the father announced that he would accept the settlement offered by the insurance company under the condition that the money be for counseling and a college fund for the driver’s daughter who had been in the truck when the accident happened.

As any mediator will tell you, such agreements are not all that unusual. How did the mediator know to encourage the parties to speak with one another alone? This approach was not learned in a class or from a book, but rather from years of discussions with other mediators.

In an earlier post I wrote about mediations involving companion animals. I noted that generally in U.S.law, animals are treated as property, and legal issues are based in contract and property laws.

Some recent cases in the U.S point to possible changes to come. For example, in 2018 the group Nonhuman Rights Project sued the Bronx Zoo for the release of Happy, an Asian elephant. The attorneys argued that cognitively complex animals such as elephants should be treated as “legal persons” entitled to fundamental legal rights, including bodily liberty. The court disagreed.

Later, the group sued the Fresno (California) Chaffee Zoo for illegally imprisoning three elephants, arguing they are entitled to habeas corpus rights (the common law principle that allows a prisoner to appear in court to determine whether they are being detained lawfully). The argument is not that elephants are humans but are “similarly situated” to humans for the purpose of habeas corpus.

This argument could eventually lead to calling into question laboratory animal testing, pet companion “ownership” and animal rights to sue. Whatever the limits may become, it seems clear that U.S. law may eventually recognize that animals have rights too. Then, the next logical step is that an animal could not only be the subject of a mediation, but also one of the parties.

I wish to acknowledge an Op-Ed by Nicholas Goldberg in the Los Angeles Times for the source of some of the information above.