The Kluwer Blog is one of the blogs I look forward to. Recently two posts have created such interest that I have re-read them. I’d like to re-read all of them. I rarely make the time.
Deborah Masucci declared that it is ‘Time for another big bang in Alternative Dispute Resolution‘ and Constantin-Adi Gavrila similarly considered ‘What went wrong with mediation?‘. There is a lot of good reading and rereading in these posts. I’m making my very brief comments here after failing thrice on the Kluwer blog site to enter the number to identify myself as human. I decided that either I am not human or the ‘ReCaptcha’ is human!
After reading Constantin-Adi’s post, and before I was stymied by ‘ReCaptcha’ I wrote:
Great article. In my experience, including at a well attended Law Summer School yesterday, mediation has been reluctantly and perfunctorily accepted by the law profession, perhaps as a public relations exercise with both government and with potential participants. Under the wing of the legal profession, mediation suffers tokenism; controlled tokenism. And ‘mediation’ is not mediation. It is mostly settlement conferences: quiet and respectful banging heads together.
Expanding on the above comment, I’ve considered – what went wrong? As I see it, mediation has been sent to boarding school in the next suburb, instead of living with the family. Mediation is a humanity. The skills of mediation are the skills of humanities. The process of mediation is a process of humanities. The substance of mediation is the substance of humanities, in the context of the law. The interpersonal aspects of mediation are the subject of humanities.
Law schools have taken good care of mediation, for subject that is a ring in. And that is all. Mediation is not and never will be one of the priestly 11. Mediation needs to go home where it can be developed into an undergraduate degree. As a humanity, it can be promoted to government, business and individuals in a way which is consonant with the philosophy and principles of the humanities rather than in a way which is dissonant with the philosophy and principles of law.
Law schools can develop excellent courses in advocacy, representation and negotiation for their students, the soon-to-be trusted advisors in mediation.
Mediators’ and trusted legal advisors’ roles are complementary. Participants experience a holistic approach.
Participants then have the best of both worlds, worlds which are the antithesis of each other. Mediation is promoted well. The mediation profession thrives as does the legal profession. Importantly they thrive by cooperating in what I refer to as CDR (Complementary Dispute Resolution).