WHOSE MEDIATION IS IT ANYWAY?
By
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 which 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 mediation?”

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 that end.

When a disputant enters into a mediation, the disputant must always ask whether the institution and its mediator have more than the of the disputants’ interest in self-determination in mind.

©Triage Mediation Services Inc. 2002

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