Updated: Dec 9, 2021
There is an ingrained misconception that mediation is simply about splitting the difference between competing offers. To make that point, I recently attended a conference, and one speaker stated that her job as an umpire was much different than that of a mediator. To support that claim, the speaker indicated that mediators split the difference during mediation, while her job was to evaluate and value claims. To say that I was a bit disappointed by that comparison would be an understatement.
Past Mediation Practices
There is some truth to the fact that many mediators have in the past and continue to split the difference at mediation. Most lawyers have had this experience where the mediator ends up doing shuttle diplomacy.
Shuttle diplomacy is the practice of certain mediators that go back and forth between the two parties with a legal pad in hand carrying offers and counteroffers. The primary task at hand ends up being the exchange of numbers until each side meets somewhere in the middle.
The practice of shuttle diplomacy usually starts with very high demands and very low offers with tiny increments in between. After a long mind-numbing process, the final resort will be the mediator's use of a bracket to bring the parties closer to settlement or realize they need to go home. While this may be one form of practiced mediation, it is not the only way to mediate.
Mediation appropriately done is so much more than just exchanging numbers and splitting the difference. Splitting the difference at mediation for all cases implies that each party shares equal responsibility, liability, and fault, which is not the case. Stated another way, if mediation was just about splitting the difference, there would be no need for mediators as the parties or an accountant could perform that function.
True mediation in its purest form is the resolution of a conflict. To resolve a conflict, there has to be an understanding of the nature of the conflict and the underlying issues. Understanding conflict and its disputed issues requires gathering and exchanging of information so informed and rational decisions can be made. This means there has to be good communication, honesty, and a non-judgmental assessment of options during mediation. This is more than just numbers.
A mediator determined and interested in resolving a conflict will utilize more skills than just exchanging numbers. Mediation 2.0 will have a mediator first setting the tone for the mediation to be conducive to achieving the objectives for the honest sharing of information.
To achieve the critical need for the sharing of information, the mediator will need to utilize non-judgmental communication methods to encourage the parties to do the same. Many parties just need to be heard before their disputes can be resolved. Proper techniques for listening, speaking, body-language and the use of empathy are all tools in the Mediation 2.0 toolbox. Finally, a mediator must have an open mind to engage in high-end problem solving to move the parties towards a collaborative process for solving their dispute.
Expect More From Your Mediator
If you are only interested in numbers, then perhaps all you need is a number cruncher to split the difference. That, of course, would imply that both sides agree on the numbers and are equally responsible for the conflict. I would suggest that very few mediations are only about numbers or should split the difference.
Likewise, if you are going to mediation to check off a box so you can go to trial, well, then, in that case, any mediator will undoubtedly do. However, if you have a true human conflict and dispute, as most cases are, you then need a mediator that is equipped to do more than just split the difference.
While many mediators continue only to split the difference does not mean that is what mediation is about. There is so much more to mediation than splitting the difference. Educate yourself on the differences between mediators and then determine whether you need shuttle diplomacy or Mediation 2.0.
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Miami Florida Mediator