Mediation Can Be Great, Just Go in with Your Eyes Open

Note: I am not anti-mediation and I never have been. I am anti-mandatory mediation. And I object to flawed and fraudulent arguments in favor of mediation.

Appeals to authority (“courts agree with me”) and ad populum arguments (“people I lecture thank me and say I’m right”) do not mean arguments hold up under scrutiny.

The mediation lobby “argues” that mediation is superior and necessary and your moral obligation by making the same assertions:

  1. The emotional and financial costs of high-conflict custody litigation, including its harmful effect on children, are enormous.
  2. Peaceful conflict resolution is preferable to belligerent conflict resolution.

Problem is that it plainly does not follow from these truisms that litigation is bad and mediation good.

Mediation and all other forms of ADR do not transform a belligerent party or belligerent parties into peacemakers.  Rather than concede this obvious point AND admit that mediation isn’t the solution for all conflicts, however, the mediator crowd (and I’m generalizing somewhat here, but not by much):

  • First asserts the truism that if people were just more mature, mindful, and enlightened there would be no litigation; indeed, there would be no conflict.
  • Then concludes—erroneously—from their non-premise that engaging in ADR causes people be or at least act in a mature, mindful, and enlightened manner such that they resolve their conflicts. And for good measure they add that if one doesn’t settle one’s conflict through ADR, one failed ADR.  They know this is not true (it can’t be). Conflicts cannot be unilaterally resolved by one–albeit one terribly enlightened and earnest–party to a conflict through ADR.
  • There is nothing about mediation that divests all parties to a conflict of vice and replaces it with virtue. By the same token, there is nothing about litigation that divests people of virtue and replaces it with vice.  This is inarguable, but swooning mediation fans refuse to concede this fundamental point.
  • Courts have hopped on the mediation bandwagon principally because the more that gets mediated the less work the courts have to do. But since they can’t tell us the truth without looking like heels, they borrow a page from the mediator playbook and pump out the same hackneyed hot air:  “mediation is critically important to the emotional and psychological well-being of children” blah, blah, blah.  The point that the courts and the mediators miss is that mediation itself is nothing.  It has no inherent power.  Telling divorcing parents to “go to mediation” will not have the magical effect of settling a conflict, much less settling it fast, cheap, and amicably.  Merely “going to mediation” won’t settle a case any more than “going to the gym” will build strength and result in weight loss. Courts know this, but they won’t acknowledge it because to do so would strip mediation of the mythic status it has attained as a panacea.  Instead, they skip commenting on the step that is crucial to mediation success, i.e., good faith, and act as though they (and you) presume that simply going to mediation means half the battle’s won.  Wrong.  Litigation fails to serve its intended purpose not because of any inherent flaws; it fails when participants engage in it frivolously, maliciously, and in bad faith.  Replace “litigation” in the preceding sentence with “mediation” or “ADR” and it is no less true.

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