Mediators often describe the process they lead as antithetical to the traditional justice system. I do it myself, sometimes explaining to the participants in a mediation that we do things in mediation the opposite way from court. For example, I might point out that in a courtroom, the judge is the most important person, and arguments in court are directed at the judge; while in mediation the parties are most important, and arguments are directed at each other.
Mediators also sometimes try to persuade parties that the process is much better than litigation. Litigation is “bad” because it’s expensive; or because it’s adversarial; or because it produces far from perfect results. Mediation is “good” because it’s consensual; or because it’s cathartic; or because the parties control the outcome. I use these arguments myself sometimes, in an effort to persuade parties to resolve disputes in a mediated setting to avoid the pain and expense of continued litigation.
Rather than think of litigation and mediation as two competing systems, however, it might be more accurate to consider that they are both aspects of a more complete whole. When we choose to litigate, for example, we might be surprised to find ourselves in a less than wholly-adversarial process. Disputes between the parties in litigation–from something as mundane as getting an extension of time to file a pleading, to discovery disputes, to more substantive disagreements–are usually best resolved by a process of negotiation. Indeed, many courts require that parties attempt to meet and confer to resolve such disputes before bringing them before a judge. Many judges get very involved in settlement negotiations, or at least encourage the use of settlement conferences, or face-to-face negotiation to settle cases. And the vast majority of contested cases in litigation end in settlement, through a process of negotiation, not by trial.
When we choose to mediate, we do it with the backdrop of the court system and the entire body of legal principles and court cases behind us. We can disregard that backdrop if we choose, allowing the parties to reach results very different from the way the legal system might resolve them. But more often parties, their attorneys, and the mediator, all treat the traditional justice system as a touchstone to guide their private attempts to resolve the dispute. So we often find ourselves in mediation attempting to predict how a judge or jury might decide the controversy before us, assigning weight to the probabilities of an outcome in favor of one side or the other. Or the parties might make the same legal arguments they would make in court, arguing that the result should favor one side or the other because that is the result the law demands. In that situation the legal system can serve as a measuring stick to assess the fairness of a proposed resolution. Some mediators function very much like judges, advising the parties on how the case should be resolved under the law. And parties sometimes look to the mediator for an authoritative-sounding resolution.
It seems that in nearly every dispute, parties use a combination of adversarial and non-adversarial means to reach resolution, and parties always retain the full spectrum of tools at their disposal. So even when parties find themselves in court, they know they will probably negotiate their way out of court. And when parties decide to mediate, they still keep the hammer of the litigation system in their back pockets if they cannot resolve the dispute through mediation. In other words, mediation never operates completely outside of the traditional legal system. Even when we try to ignore it, that system always intrudes, like an elephant in the mediation room.
One reason I decided to change the name of this website to “Conflict Resolution” is to recognize that the process of conflict resolution is all of a piece. Just as von Clausewitz recognized that war is the continuation of politics by other means, so litigation is merely a more adversarial form of conflict resolution. We need not view either litigation or mediation as “bad” or “good,” nor see the two competing processes as in irreconcilable conflict with each. They are both tools, to be used as appropriate, to help resolve conflict.