The go-between - personal narrative of a lawyer-mediator

THE GO-BETWEEN

IT HAS BEEN A DECADE since I shifted my law practice from fighting for my clients as their advocate to acting as a neutral lawyer-mediator with two people who would otherwise hire advocates. When I started to work as a mediator, I was entering unknown territory, and so were my clients. It seemed to me that the adversary system functioned so poorly that anyone who tried mediation had to be better off. The expense of litigation was prohibitive for almost all but the well-to-do. Escalation of a dispute seemed to be an inevitable result of the attack, defense, and counterattack which characterize the typical dispute in the hands of lawyers. And probably most significantly, once lawyers became involved, the case moved out of the control of the clients and into the hands of lawyers or a judge, contrary to the theme of the seventies--assuming more power over our lives.

Mediation offered the possibility that while one person wouldn't be in complete control, together the conflicting people could control the outcome of the dispute. It also offered the possibility that the relationship between the parties wouldn't deteriorate as a result of the process. And the costs of resolving the dispute might be minimized by hiring one lawyer to sit with both people rather than pitting one lawyer against another.

Most of my efforts in the process are to help each person identify and articulate his or her own needs and sense of fairness in the situation.

In partnership dissolution, divorce, or other situations where relationships sink into the kind of trouble that calls for legal action, the agony and pain are reduced because the people who put the relationship together are in the best position to decide how to take it apart.

Ten years later I can look back and say that mediation has worked for many people. They have managed to cut legal fees, and have found nonpunitive solutions that helped each of them move ahead with their lives. Many learned how to talk to each other in the face of serious differences between them.

Yet for me and for most people who have mediated, the process of mediation is harder than any of us might have imagined beforehand. The relief that came from not being tied to court schedules or vitriolic contact with other lawyers and judges was balanced by the discovery that conflict in court was far less chaotic and less real than conflict in an informal setting without the protection of court rules of procedure or people interposing themselves on representatives between the two contestants. Conflict in mediation is often strong, direct, immediate, and emotional.

I have learned that in order to reach the goal of mediation--a lasting resolution fair to both sides--conflict is not only inevitable but usually indispensable. For many lawyers or others who like the idea of mediation as an alternative to the conflict they feel in the courtroom or in negotiation with other lawyers, it can be a surprise to find oneself sitting in the middle of a deteriorating relationship with each person going full blast at the other. Mediation isn't nice, and it's not just for nice people. As a matter of fact, the cases that I worry about most are where the people are so desirous of making peace with each other, or one person so much wants to preserve the relationship, that they are willing to sacrifice their needs to keep the peace. Then they have the worst of mediation. This result is far worse than would have been produced by lawyer representatives. It is clear that mediation doesn't work for people who are not willing to identify for themselves what they believe to be fair to both sides and stand up for themselves in the process. The people for whom it works best are those who each have a reason to want to work things out together, and who have the capacity and willingness to speak the truth as they know it, even in the face of someone else's different perception.

Photo: Community Boards of San Francisco explains the conciliation process to a neighbor.

Photo: During the conciliation, the disputing neighbors talk to each other directly, often for the first time, as volunteer panelists facilitate a resolution.

Photo: Volunteers are given 26 hours of training in communication and conciliation skills enabling them to become neighborhood peacemakers.

COPYRIGHT 1986 Point Foundation
COPYRIGHT 2004 Gale Group