Sunday, November 22, 2009

The Mediation Mindset

Victoria Pynchon's always-insightful Settle it Now Mediation Blog takes a close look today at the alternate mindset necessary for resolution of conflict through mediation, as opposed to litigation.

She argues that the litigation process necessarily adopts our collective inclination toward "good vs evil" narratives, while mediation, by contrast, emphasizes "interest-based, consensus building, collaborative, problem solving [and] negotiated resolution."

To succeed in mediation, she suggests, the litigation narrative must be dislodged.

She excerpts from Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833, by Law Professor Robert Rubinson, to underline this central point:
The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

Needless to say, lawyers attending with clients at mediation play a major role in setting and maintaining the tone of the dialogue that ensues. While I'd argue that there is no one-size-fits-all-cases "mediation mindset," and there are indeed occasions where a "big stick" is warranted - even at mediation - Ms. Pynchon's analysis and comments are sound and largely on the mark.

Mediation works best when legal warriors lay down their swords (if only for the day).

- Garry J. Wise, Toronto

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