WHOSE MEDIATION IS IT ANYWAY?
David B. Harwi, Esq. and George Reath, Esq.
One of the hallmarks of mediation is that the disputants
determine the results. Those results may take a variety of forms
such as complete resolution, partial resolution, exploration of
issues or definition of a process to address issues. The mediator
works with the disputants in the mediation to achieve the results
that the disputants define. The mediation and the mediator belong
to the disputants.
However, there are many mediations in which an agenda other than
that defined by the disputants may have an impact on the results.
Consider mediation in the institutional context such as mediations
provided by or mandated by courts or administrative agencies
provide the mediator. A question every disputant should ask is, “What
is the agenda of the institution providing the mediation and
how will that agenda shape the conduct and results of the
The interests of the institution and the disputants in many cases
may be the same. Both could want complete resolution however obtained
with whatever shape is necessary to generate closure. Consider
also the situation in which the disputants recognize issues and
interests beyond the immediate dispute but the institution is
only concerned with the removal of the dispute from a docket,
and the mediator has been trained by the institution to accomplish
When a disputant enters into a mediation, the disputant must
always ask whether the institution and its mediator have more
of the disputants’ interest in self-determination in mind.
©Triage Mediation Services Inc. 2002