The Emergence of Mediation

Patrick Goggin

By Patrick Goggin

March 1, 2008

When we think of the traditional American judicial system we envision a courtroom where adversaries battle it out to the end, one side emerging “the winner” and the other “the loser.” However, change is afoot and, when we look back on this 20th century perspective a decade or two from now, we will see how archaic it really it is. This is not to say we will not have traditional court battles, but they may just be the exception rather than the norm.

For the past twenty years or so, the process of mediation has emerged from an upstart alternative to a soon to be favored methodology for resolving legal conflict. From divorces of marriage and business partnerships to automobile accidents, contract disputes to landlord/tenant conflicts, mediation offers an attractive alternative to the courts. In this process, a neutral party facilitates a discussion, as opposed to judging a fight, enabling each side in a conflict to tell their side of the story. The parties rely upon the mediator to create a setting where each version of the story can be heard and understood by the other side. Only when this occurs is an opening created to allow the mediator to help chart a pathway to resolution.

A good mediator offers up ideas that might result in resolution but urges the parties themselves to craft the essential terms of an ultimate agreement that ends a conflict. This is critical because the parties must feel empowered coming out of the mediation process to increase the chances that they will live up to their side of the bargain. Without this empowerment, the resolution will not last leading to the dissolution of the peace.

Generally speaking, in the winner/loser model of our traditional courtroom experience, even “winners” are left with a sour taste in their mouths. The adversarial process is one that is drawn out over years requiring a major investment of both time, energy and money. In the midst of this journey, parties often forget why they are in the process in the first place, distracted by the minutia of battles over procedure, turning over documents to the other side, and the like. Mediation streamlines the process helping each party engaged in the conflict to feel good about not only avoiding a long drawn out war and preserving a great amount of resources but also about being part of co-creating the outcome.

In today’s global society filled with strife from numerous ongoing wars to the individual’s struggle to keep up with paying the bills we need to find hope in even the smallest things. Mediation is one area that can provide us with such hope. For when two people walk away from conflict feeling that peace has been achieved, ripple effects are felt in their spheres of influence causing the peace to move outward. In this way, the positive resolution of a single conflict has a significant impact that affects many. Imagine an entire culture embracing this process and the global impact it can have. What you conceive of is the hope of mediation.

FCJ Editor

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