The approach to mediation at Lasting Agreements has evolved so significantly over the dozen and a half years that it is fair to say a veritable paradigm shift has occurred. What does that paradigm shift look like? Where does it surprise you? How does it feel? Why does this matter? What does this mean to you? How can you and those whom you care about benefit from participating in a mediation process that is framed within this new paradigm?
The reader will find thoughtful responses inspired by these questions and more in the body of this essay. But first let us set the stage by first looking at the design of primary dispute resolution in the United States, how it works, and what issues arise from this design that are often better addressed by alternative models.
Next we shall note what some of these alternative models are. The standard approach to resolving disputes in the United States is called litigation. Alternatives to the standard approach of dispute resolution include mediation, arbitration, neutral evaluations, family conferencing, restorative justice, and collaborative law to name a few. Settlement conferences typically occur within the context of litigation but not always.
Typically, these alternative approaches to resolving disputes are collectively referred to as Alternative Dispute Resolution or ADR. Within a general consensus of what ADR is, there is a range of understandings. Many mediators and arbitrators with attorney backgrounds hold that ADR merely represents a variety of approaches to resolving disputes without going to court (alternatives to trial). Standard settlement conferences are often included in this understanding. Others hold that ADR represents a variety of approaches that are not merely alternatives to trial but alternatives to litigation altogether. Standard settlement conferences are often not included in this understanding.
With respect to the ADR continuum, it is the intent of this essay to pay particular attention to mediation. We shall explore how mediation is similar to the standard (primary) model and how it differs. Where litigation consists of a clearly defined set of practices, mediation is much less regulated and consists of a wider array of practices depending on the mediator’s background and training. Another paper elsewhere on this website compares and contrasts a variety of approaches all of which fall within the mediation framework. As mentioned above, many lawyers who say they practice mediation actually facilitate settlement conferences instead. Many lawyers typically have not undergone mediation training (although there are notable exceptions) but they did learn how to conduct settlement conferences while in law school so they simply do what they know (and give it a different name: viz. mediation).
It is always wise for prospective mediation clients to ask the mediator about their background, whether or not they received specific mediation training, from whom such training was received and whether or not they underwent any sort of internship that was specific to the practice of mediation. We’ll explore the differences between mediation and settlement conferences in more detail later on. For now, suffice it to say that it is our view here at Lasting Agreements Mediation that settlement conferences fall within the primary dispute resolution model (they are merely an alternative to trial– not an alternative to litigation) whereas mediation is an approach to alternative dispute resolution that is more specifically an alternative to litigation.
Finally, once we have clarified the distinction between primary dispute resolution and alternative dispute resolution (focusing on mediation in particular), we will explore what mediation that has undergone a paradigm shift looks like. The paradigm shift is to frame mediation not merely as an approach to dispute resolution at all but instead to frame it as a collaborative data-driven system design project in which needs, yields, energy and resource flows as well as a specific set of living system design principles inform the look, feel and functionality of the design of a living system where the mediator serves more as a system design coach rather than a referee to the parties involved.
No matter what one’s background is, we at Lasting Agreements think everyone considers divorce to be a life crisis. Often conflict is involved in dealing with this crisis. The Chinese word for conflict is actually a semantic compound represented by two (ideographic) logograms or symbols. The first ideograph represents the idea of crisis, the second represents the idea of opportunity. In the United States, I think it is safe to say that an overwhelming majority litigators and mediators focus their intervention around the conflict aspect of divorce. At Lasting Agreements Mediation we focus less on the conflict dimension of divorce and more on the aspects of divorce as a crisis and opportunity. Although conflict is addressed in our approach to mediation, we have shifted our attention away from it as our primary focus.
If we think about a family going through a divorce, we can consider three possible scenarios:
- Litigation: primary dispute resolution
One parent has harmed the other parent. The nature and degree of harm is named. The parent who caused the harm is blamed. The extent and degree of harm suffered by the injured parent and the family law that provides a remedy to compensate the injured parent is claimed. A full investigation will be conducted to establish the full array of facts of the case and the degree of injury suffered by the harmed party. The court will determine what remedy provided by law will adequately compensate the harmed parent. Such remedies (often punitive) typically take the form of maintenance (alimony), child support, and parenting time. Fault is often framed in terms of perceived or alleged (not necessarily proven beyond a reasonable doubt) psychological dysfunction of at least one parent or abuse and neglect of at least one child. The parent whom the court decides is the least distasteful is deemed the winner. The losing parent is often maimed in the process. In short, primary dispute resolution uses a name, blame, maim, claim approach to resolving conflict in family court. - Mediation: alternative dispute resolution
- Mediation: living system design project
Litigation: Primary dispute resolution
Litigation typically is said to begin when at least one party in a case hires an attorney to represent their interests. In litigation, each party starts by investigating the facts of the case. Investigation provides information about what harm allegedly occurred and how it occurred. The second step is to determine who perpetrated that harm and why they did it (motive). The party that was allegedly harmed is called the plaintiff (the root of this word is the same as for the word complaint)- while the party that allegedly caused the harm is called the defendant. The third step is to conduct legal research to find out which laws provide for a legal remedy for the specific harm that occurred and what that legal remedy should be.
Only those facts that specifically pertain to the laws that govern the case in question are allowed to be admitted into evidence. No other facts are allowed to be considered in deciding the outcome of the case and thus are considered to be irrelevant. Sometimes questions of facts or points of law are disputed. A disputed question of fact or point of law is considered an issue. Attorneys (litigators) use arguments to resolve legal issues, i.e. questions of fact or points of law.
Although it is presumed from the outset that one party has harmed the other party, that the harmed party is entitled to a remedy to compensate for the physical or economic injury (damages) experienced, and that the law provides for such a remedy, litigation does not necessarily involve initiating a lawsuit. Often the plaintiff (usually represented by their attorney, occasionally representing themselves, pro se) can convince the defendant that the evidence that supports the facts is clear and the remedy provided by law is clear and the defendant is willing to settle without undergoing a trial.
If the opposing parties to a case are unable to reach agreement concerning disputed questions of fact (e.g. arguing that the evidence does not substantiate a certain fact) or points of law (e.g. arguing that a certain point of law does not, in fact, govern one or more of the established facts of the case so the remedy provided therefore does not apply) then the parties can petition (ask) a court of proper jurisdiction to hear the matter. If the matter goes to trial to resolve disputed legal issues, the judge or magistrate essentially determines which party is the winner of the case and which is the loser.
At trial, once any pending procedural issues are resolved, each party begins by making an opening argument. In the opening argument, each side states its position on the legal issues and what it thinks the legal remedy should be. It provides an overview of the evidence it intends to use to establish points of fact and argues why certain points of law and the remedies it contains should be applied to the case.
The middle part of the trail consists of the evidentiary proceedings. This is where evidence is presented from (often) a plethora of investigations to establish the facts of the case and determine which parent has harmed the other, how much they have harmed the other and what remedy is provided by law to redress that harm.
The conclusion
Article still in process….
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