Mediation Is

The LM Johnson Theory of Mediation

Background:  A few years ago, I decided to learn something new and different than the applications of technology that had consumed my time and attention for eons.  I wanted something with different challenges and rewards.  For a  couple years, folks close to me had encouraged me to “become a mediator,” so I decided to try that; to become a mediator.  I spent about half my waking hours going to mediation classes, reading articles and books about mediation and volunteering to provide mediation.  The article that follows here is a summary of what my emersion in mediation taught me.  It describes a theory that for me explains and justifies my enthusiasm for mediation. 

Mediation is a process, a procedure for helping disagreeing people come to an agreement.  It’s not rocket science, rather it’s something pretty much everyone can do, at least to some extent.  The process is similar to an oral tradition that has evolved from eons of practice of common sense.  There are components to the process that “just work” and parts that require practice and experience.  Underneath the process are some simple principles based on a common faith that people know best what’s good for them and can make good decisions when they are given the appropriate circumstances and resources.  The mediation process creates the circumstances where people can make decisions based on the wants and needs they identify as being important and relevant.  

Mediation Is the dispute resolution process of choice when the relationship between the disputing parties is significant or needs to continue.

The origins of mediation can be assumed to be nearly as old as disagreements are.  Before mediation those disagreements might have been settled by less peaceful methods.  At some point, parents or outside third parties (neutrals) began to intervene, perhaps in a desire to keep the peace or protect others from the dynamics of the disagreement.  

How fair the disagreeing parties felt the resolution was likely influenced the extent to which they followed it.  A neutral’s reputations would logically become more important because it reflected the neutral’s skills in helping the parties develop a desirable outcome.  Trust of a good neutral may easily have extended to her/him to not sharing sensitive values with others, avoiding parties fearing those others might use that information against them.  That is; the ability of the neutral to “keep his/her mouth shut” may have impacted the parties’ choice of that neutral in the future.  

The Strengths of mediation, in comparison to other forms of dispute resolution such as litigation and arbitration, include:

  • a focus on reducing tension in situations where a significant relationship exists and is expected to endure,
  • a process that is collaborative not confrontational,
  • communications that are confidential,
  • solutions that are developed by the people who have a vested interest in understanding and following them, because they address the issues that are important to those people,
  • not requiring an outside authority or agency,
  • discussions that can occur at an appropriate/convenient time, and
  • a process that generally less expensive than those other forms of dispute resolution.

Principles and assumptions that give mediation its strengths have evolved, and continue to evolve just as the circumstances of peoples’ lives and work evolved.  Those principles and assumptions include:

  • voluntary participation of the parties in both the process and the creation of the solution.  The process must be clear and straightforward encouraging the parties to engage. The  roles of each participant, and the rules for communicating and sharing information must make sense so the participants can use rely upon them.  The process is successful when the parties feel in control enough to share and participate voluntarily.  
  • confidentiality of the communications, discussions, and negotiations allow the parties to divulge sensitive and pertinent information.  This means that the parties can provide relevant information without concerns of resultant gossip or fears that the information will be used in subsequent legal proceedings. 
  • a third-party neutral assistant who has no interest in the outcome and can ensure fair treatment of the parties, improved communications, and a focus on what is important to each party.
  • self-determination in the creation of a resolution that addresses the requirements of the parties and is expressed in language and thoughts the parties understand and craft.  The process must provide the parties the information and resources they need to make intentional  and informed decisions and to develop a resolution that they decide expresses their agreement accurately. 
  • good faith that the parties understand that having different opinions and perspectives of the relevant matters does not mean that one person knows the truth and the other does not.  The differences reflect the unique perceptions and understandings of the people involved from their individual circumstances and experiences.  A mediated agreement does not imply right or wrong, guilt or innocence.  
  • non-zero sum outcome (specifically not balancing one party’s losses against another party’s gains) focuses attention on significant measures that frequently are individual for the parties and makes possible solutions in which all those measures can improve. 

Mediation provides direct services to society.  Mediation services are conducive to collaboration, cooperation, and sharing that can address a range of issues that are not appropriate for other forms of dispute resolution. Formal and authoritative agencies provide dispute resolution resources that range from protection against foreign invaders to law enforcement that protects members of society from each other.  Mediation services compliment the military, laws, courts, and law enforcement that provide the formal authoritative services and can address issues before they rise to the level requiring formal services. 

Mediation services can serve a wider proportion of the population than can the more formal and authoritative methods.  This is partially due to the flexibility and informality of mediation.  The wider access is also the result of mediation being a process that can be provided by a wider and more diverse mediation practician population. 

Just as mediation evolved to its current state, in order for it to remain useful and effective it must continue to evolve.  Mediation’s common sense principles are consistent with its evolution.  Because it is less formal than authority and agency based systems, mediation is more flexible and can be more experimental.  If neither party likes the outcome, it’s not enforced.  If the parties disagree about maintaining the agreement, the issues can be escalated to more formal processes.

Because of mediation’s integration into the everyday life and work of the people who use it, mediation changes with the changes in people’s circumstances.   Mediation is defined by peoples’ circumstances.   

Mediation is effective because it is flexible being practiced where and how people live and work.  It respects the participants, their societies and their cultures.  It provides solutions that benefit all parties.  It does not require anyone to give up something for the good of the other. 

Mediators must continually develop new skills, knowledge and technology to keep up with the way people work and live.  When mediators practices are sensitive and responsive to the circumstances that provide identity and purpose for people, their practices are more effective and relevant. 

The significance of and expectations for mediation will grow as mediation grows in value as a key method for resolution.  Mediation’s success for larger numbers of disputes and disputes of increased significance will power that growth.  Mediators will have to grow appropriately in order to provide the new essential functions.

It is no exaggeration to assert that mediation has a unique potential to harness the explosive potential of technology and knowledge, it is the child of both.  Its applications are peaceful making its long-term impact greater and uniquely valuable.  In order to realize its potential, mediation must move from the under appreciated practices of those who work in the shadows of the law and psychology into its own light.  No other dispute resolution system has equal potential. But it must be seen to be appreciated.

There are requirements for the potential benefits of mediation to provide maximum positive impact.  The practice must become a profession in its own right, its practitioners must become professionals and the study and application of mediation must be recognized as of equal importance to the study and application of medicine and law.  Potential users of mediation must have objective measures of the practice and of the skills of the practitioners to sustain confidence in its applications.    

Mediation is positioned to provide historical progress in dispute resolution.  The resultant potential impact on society is difficult to overstate.  Doing so will require practitioners, academics, and politicians of exceptional courage and vision just as have other professions.  Beginning now is mediation’s time.