Let's Broaden our Scope - Utilising the Mediation Process in a Proactive Way

Nina Meierding Ms Jd                 When I first began practising as a mediator almost thirty years ago, mediation was rarely used in litigated cases. Lawyers and judges were skeptical and I was repeatedly told that parties were not capable of making their own decisions when they were in the middle of conflict and that a third party (their lawyer, or better yet, a judge) should advise the party as to the appropriate outcome.

At that time, mediation was primarily used in custody disputes in the courts, community mediation centres, and a few federal or state programmes. There were very few private mediators, and even fewer that were fulltime.

As lawyers and judges have changed their perspective about mediation and more lawyers have become mediators, mediation has morphed into an adjunct to the court process – sometimes mandated by the court or by contract, and often encouraged by both lawyers and judges.

Because it is now commonly being used in litigated cases, mediation is often occurring when the conflict is often fully manifested with positional parties and entrenched positions, rather than being used when the conflict is emerging.

While I believe that mediation at many stages is very valuable, I have concerns that early intervention or proactive mediation (prior to filing a case or a formal grievance) is not being used to its full potential.

As a trainer who works extensively with both public and private entities, I have had many conversations about the use of conflict resolution.  The following are some very common misperceptions about the possibilities for mediation:

In a conversation with a human resources director who was complaining about a dispute in their medical centre, I inquired as to whether they were involved in mediation.  The response was “Not yet, we don’t think it becomes a legal issue until after the grievance is filed.”

In a conversation with the senior partner of a law firm who was expressing concern about several young angry female associates who might be filing a discrimination lawsuit against the firm, the answer to my inquiry was:  “Absolutely we will use mediation, we don’t want this to go public.  But we want to make sure they are really serious about actually filing the case before we suggest mediation.”

In a conversation with a banking official who was involved in a dispute with a very prestigious customer, where once again I was asking about the use of mediation, the response was “Well, our lawyer said we would do that once we were ordered by the court.”

In each of these situations, a proactive, rather than reactive, use of mediation might have resolved the conflict as it was still emerging rather than waiting until it was fully manifest.   The possibility of a productive continuing relationship would have remained high and the financial and emotional costs of filing a formal process (lawsuit, fair hearing, grievance, etc) could have been avoided.

In expanding my own practice to include early intervention mediation, it allowed me to work even more in the areas of communication, building relationships, empowering parties, and moving beyond the “deal.”

The possibilities are endless and we need to educate businesses, hospitals, families, boards of directors, universities, insurance companies, and the public at large as to the spectrum of possibilities for timing their use of mediation.

Ultimately it should be up to each client to choose the best strategic moment to use mediation, but it should be a choice that is fully informed rather than the erroneous presumption that mediation is used primarily as an “alternative legal process instead of the courts.”

Nina Meierding is a keynote speaker at the AMINZ Conference, to be held in Auckland on 25–27 July. Her visit is funded by the New Zealand Law Foundation. 

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