During Lex Infinitum, the international commercial mediation competition for students at V.M. Salgaocar College of Law in Goa, India, there was a lively and entertaining debate, in the best debating-society tradition. The motion was: “The Role of the Mediator Is Overrated.” Arguing this in front of a hundred and fifty students, mediators, lawyers and academics in a forum designed to promote mediation seemed to be a daunting task. But it is certainly true that the role of the mediator can be overrated, and I will come to that later.

First the debate. Mediators may help parties make breakthrough agreements, one of the arguments against the motion went, and the speaker presented a case helping a divorcing couple to reconcile. Mediators are needed more than ever in a world in which political and international conflict remains a massive problem and threat. The more mediators there are the more small steps there can be towards peace. And as long as our world is not perfect, which it is not, we will need mediators. Mediators can change people’s lives. All true.

But the role of the mediator is overrated, the pro argument went, because people are generally well able to resolve their differences, and while mediators may be helpful on process, they do no more than that. Mediators are assistants to negotiators and counsels, let us not overestimate what they can do. If the parties need to come to agreement because their alternatives are less attractive than agreement, they probably will, and a mediator may be able to assist, but little more. If the parties have good reason not to agree, there is not much a mediator can do. There is so much talk of mediation, there is so much mediation training, and there are so many trained and qualified mediators. But how much mediation do they actually do? We actually need to be telling trainees that they will not mediate. The role of the mediator is overrated.

It was certainly an entertaining debate, at times raucous.1)I confess to debating pro the motion at Lex, and comparing mediation to sex. Mediation is made to seem sexy, mediators attractive. There is a lot of talk about mediation, just as there is a lot of talk about sex (in the media or in our heads), but nowhere near as much of either goes on as is talked or dreamed about. Mediators and would-be mediators desire mediation, but don’t always get it. And when it does happen, it frequently does not match the images we make of it. Like sex? There was and is a serious message at its heart. A message which all mediators, young and old, experienced or new, should embrace. It is not really about whether the role of the mediator is overrated, it must be about how mediators rate themselves.

Over recent weeks I have heard from a former student of mine, who turned down a request to take part in a public mediation event. I have spoken to a trainer who says that she would do negotiation training but not mediation training, and to lawyer-mediators who have said they would not work in certain fields. Each of these people felt insufficiently qualified to take mediation-related work on in the setting offered. However flattering – or needed – the offer of work was, they knew that it was not for them. This is right. On the other hand, I received an e-mail from someone I have never met saying she was “sure she would able to help me” in a matter for which I had requested an offer for some counseling. I never got back to her. How could she be sure at this stage in our correspondence? Reflecting on your limits should be a key element in every mediation training programme, and a key part of every mediator’s practice. Mediators, who, particularly in settings like Lex Infinitum where there are so many enthusiastic young people, are in danger of being seen to have some special magic or aura as conflict resolvers and communicators, and whose egos are potentially flattered by this, must know their own limits. They must not overrate themselves.

When explaining mediation services to clients, who may sometimes be desperate for solutions and may even occasionally see a mediator as a great last hope, it is important to realistically discuss expectations and what the mediator can and cannot, and will and will not, do or attempt to do. In the name of reality, in this kind of conversation mediators probably need to underrate what they can achieve. Not out of false modesty, but to be sure that the clients and purchasers of mediation are getting a fair bargain.

So the role of the mediator is not per se overrated, but it can be. Overrate it and you do the profession a disservice.

 


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1. I confess to debating pro the motion at Lex, and comparing mediation to sex. Mediation is made to seem sexy, mediators attractive. There is a lot of talk about mediation, just as there is a lot of talk about sex (in the media or in our heads), but nowhere near as much of either goes on as is talked or dreamed about. Mediators and would-be mediators desire mediation, but don’t always get it. And when it does happen, it frequently does not match the images we make of it. Like sex?

3 comments

  1. This is an interesting debate. I would be against the motion. The “pro” argument is based on a key concept “…people are generally well able to resolve their differences”. I disagree with this statement. My experience is that many people are not able to resolve their differences. If they were, lawyers and arbitrators would be out of business.

    My own perspective is this: in a dispute situation, communication between the parties is often lacking and the options for collaborative dispute resolution are restricted. This is why many people turn to adjudication, to have a third party (judge or arbitrator) decide the outcome of a dispute for them.

    Mediation is an opportunity for the parties to be able to communicate more effectively in an attempt to resolve the situation between themselves. That’s what the mediator can help with. It IS fair to say that the mediator can only be successful in certain circumstances – e.g. the participants must come willingly to the table, and be ready and prepared to discuss the situation with a view to identifying options for resolution. So mediation cannot resolve every situation, but when the circumstances are right and the participants are primed, mediation can be very effective.

    My own crusade is to enlighten lawyers as to the multiple benefits of at least attempting a cooperative dispute resolution approach before going to adjudication, and thereby to encourage the learning by lawyers of negotiation skills, so that the participants are ready to maximize the potential opportunity of such a cooperative approach.

    1. Dear Anthony
      Thank you. I agree with what you say, there is need for mediation and people do not always resolve their differences without assistance. On the one hand, a debate looks for arguments that push in one direction, not balance, and on the other the more serious element has to do with the image we have and present of mediation and ourselves as mediators.
      Best wishes
      Greg

  2. Dear Greg
    I enjoyed your post, both the content and your style, thank you. It got me thinking.
    In terms of whether the role of the mediator can be overrated, as your footnote indicates, any role can be overrated, and some are more likely to be overrated than others. So yes, the role of the mediator can be overrated.
    That led to me asking myself ‘To what extent is the role of the mediator overrated?’ That’s a question that taps into my fundamental professional identity.
    As I started the exploration, clarification and information gathering stage of my thoughts on the topic, two variables caught my attention: the audience for the question and the shape of the question.
    Who is the audience for the question?
    In your post, mediators debate the issue. If architects/plumbers/realtors were to be asked ‘To what extent is the role of the architect/plumber/realtor overrated? I predict that they, like mediators, would mostly respond ‘not at all’. Perhaps it is just as well! If we mediators/architects/plumbers/realtors were to believe that our role were overrated it would be reflected in our practice and, consequently in the self-fulfilling way of beliefs, we may fulfil our roles in such a way as they would likely become overrated.
    I suggest that we
    * (continue to) ask first mediation participants: parties, constituents and professional and personal support people, ie the people who resolve the vast majority of their disputes themselves, how they rate and how they perceive the rating of the role of mediators.
    * (continue to) ask mediators how they perceive the rating of the role of mediators.
    What is the question for the audience?
    On the issue of role of the mediator and over-rating, you conclude above ‘Overrate it and you do the profession a disservice’. I agree with you and I add ‘Underrate it and you do the profession a disservice’. The disservice in both instances is due to the skewed shape of the questions.
    I suggest that we
    * (continue to) ask questions which leave the dimensions, including of over/under to become evident.
    Above all I suggest that we
    * listen to the carefully obtained ratings and the perceptions of ratings to prepare to morph into new roles that provide a practical, procedural interpretation of the principles of cooperative resolution as society continues to evolve
    * continue to debate such topics. Rather than be distracted by the antithetical relationship between debating and mediating, let’s raise awareness through debating, inviting individual and collective mediator reflection and enhancing the practice of mediation.

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