Enlightenment is a burden.  Since having my eyes opened to the transformative power of mediation, an epiphany that forever altered my view of the legal system, conflict, and humanity in general, I have been oppressed by the disconnect between mediation’s possibilities and its realities.  Introduced by my mentor to a platoon of practitioners that have both the skills and wherewithal to do mediation justice, I know that it can be done at a high, effective level.  But to do so requires the mediator to engage with the parties contemporaneously, a very stressful undertaking from which a lot of mediators shy, to the detriment and ultimate failure of the process.

Mediation is by far the most sane and cost effective way of resolving disputes, if done properly.  There is absolutely no question that mediation should be a prerequisite to the filing of any lawsuit, as is already becoming standard practice in certain industries.  My pleas to institute this requirement in all civil cases in Colorado have, to date, not registered with the proper authorities, although my quest in that regard is ongoing.  While this would be an important step toward reforming a legal system that is comically broken, that victory would only be partially effective, if not combined with a requirement that the mediation be conducted collectively.

To have the highest chance of success, a mediation needs to be held with the warring parties in the same room, even if this same room is, due to Zoom usage, virtual.  The discomfort and direct communication that this setup requires are two of the magic ingredients in the mediation stew.  To have to confront one’s adversary, to be forced to speak tête-à-tête, to have to hear one’s enemy’s criticisms from their mouth, those are emotionally-challenging endeavors that reconfigure the conflict, ease its tensions, lead to breakthroughs.  Not coincidentally, these are also activities that define how adults should be expected to behave.  If one cannot have a civilized discussion with another adult, no matter how trenchant the quarrel, then one should not be allowed to take advantage of a legal system that was founded upon principles that require adult comportment.

Disappointingly, a lot of mediators take the easy way out.  They allow each party to sit comfortably isolated in their respective room and engage in shuttle diplomacy, flitting back and forth as a messenger that is repeatedly getting killed.  It is a particularly ineffective game of telephone that does nothing but waste time and energy.  Since each party is not hearing straight from the other one, the message’s efficacy is lost, if it is even conveyed correctly by the “diplomat.”  And, shuttle diplomacy encourages cowardice, promotes it even.  It is much, much easier to say something rude, snarky, provocative to another person when one has another to deliver the statement.  To the extent that any resolution comes from this pseudo-process, it is at best a superficial fix to a problem that has deep, but unexplored roots.

People are complex on their own, so even the most basic of disputes is a conglomeration of so many different facets, facts, and factors.  Simply resorting to trading settlement numbers may get to the ultimate conclusion, but it skips a critical intermediate step:  understanding and addressing the underlying cause of the conflict.  It also glosses over the vital importance of each side really hearing the other side’s perspective.  In a joint session, even if agreement on every particular is impossible, even if there is not a tear-filled catharsis and mutual apology, there is at least some empathy created that brings the parties closer to real détente.

In many disputes that require the parties to live with each other after the matter is over, such as the neighbor or internecine or partnership variety, this hard-earned empathy is what creates a truly lasting solution and prevents inevitable backsliding.  Shuttle diplomacy may, at best, put a flimsy bandage on the issue.  With confrontational mediation, life-saving surgery has been performed.  It is a tremendously important difference.

Mediators are typically perceived as meek, a troubling contradistinction to the alleged firebrands that engage in litigation.  A mediator needs to be a warrior, fearless in the pursuit of bringing parties together and solving seemingly intractable problems.  To demur from this charge is to do an incredible disservice to the disputants, to the mediation and legal professions, and to humankind.

Alpenglow Law, LLC | Vail Law Firm
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