Mediation: The Science and the Skills

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 147-211

147

CHAPTER 4

MEDIATION:

THE SCIENCE AND

THE SKILLS

A. INTRODUCTION

Mediation, in a relatively brief span of time, has evolved from a bold,

innovative challenge to conventional methods of decision making

and dispute resolution to a more professionalized and institutional-

ized practice.

1

Menkel-Meadow’s words provide an important preface to any study of

mediation as an integral part of alternative dispute resolution. Her

comments suggest some rather profound and rapid changes in the sta-

tus of mediation within the developing ADR field. The nature and

extent of mediation’s modern evolution is a key part of getting the full

ADR picture and is essential background to understanding modern day

mediation practice. It is also critical in identifying the practical knowl-

edge and skills that good mediators must have and be able to use.

1 C. Menkel-Meadow, “The Many Ways of Mediation: The Transformation of

Traditions, Ideologies, Paradigms, and Practices” (1995) 11 Negotiation J. 217.

148

ALTERNATIVE DISPUTE RESOLUTION

B. THE MODERN EVOLUTION

OF MEDIATION

As discussed in chapter 1, mediation led the way as the concept of ADR

emerged in the United States and Canada in the 1970s and 1980s. As a

consensual dispute resolution process in which a neutral third party

called a mediator helped participants to make decisions and reach agree-

ments, mediation struck a responsive chord with those persons dissatis-

fied with the formal administration of justice and the high costs, long

delays, and win-lose (at times lose-lose) results associated with going to

court. Mediation became the alternative of choice in the ADR movement

as ADR supporters cited studies of mediation-like dispute processing in

other communities and societies,

2

the long-time application and suc-

cesses of mediation in labour relations disputes and international

affairs, and commentators on the forms and functions of mediation.

3

The rise of mediation was predicated on a simple assertion — it

worked. The mediation process was a natural remedy for the ills of

existing disputing systems. In contrast to the clogged and costly courts,

mediation would be faster and cheaper. Instead of the adversarial atti-

tudes and the win-lose results that characterized legal proceedings,

mediation would bring the parties together to address the real issues in

dispute. Rather than imposing a decision on them, mediation would

empower the parties to make their own decisions. Mutual respect

among the disputants would be fostered in mediation, and mediated

agreements reached would be honoured and enduring win-win results.

Continuing relationships could be preserved and harmony restored if

mediation were used. The parties who went through mediation would

even learn from their experience how to better handle future problems.

In the early days of ADR, for some lawyers and others who were dissat-

isfied with the heavy costs and general unpleasantness that often

accompanied traditional dispute resolution practices, mediation, with

its offers to ease or eliminate these disputing burdens, was both entic-

ing and intriguing.

While claiming mediation was not a panacea for every dispute,

mediation proponents nevertheless increasingly touted it as a serious

contender for resolving disputes of every form. Mediation was not to

be limited to those types of disputes where maintaining close and con-

2 L. Nader & H.F. Todd Jr., eds.,

The Disputing Process — Law in Ten Societies

(New

York: Columbia University Press, 1978).

3L.L. Fuller, “Mediation — Its Forms and Functions” (1971) 44 S. Cal. L. Rev. 305.

Mediation: The Science and the Skills

149

tinuing relationships was an essential requirement of any dispute reso-

lution process. Therefore, mediation quickly moved beyond family

fights, divorce and custody cases, and neighbourhood and community

quarrels to victim-offender reconciliation in criminal cases, commer-

cial conflicts, medical malpractice and automobile accident cases, envi-

ronmental clashes and development discords, public policy decision

making, sexual harassment and sexual abuse issues, human rights mat-

ters, hostage taking, and even to warring nations. Mediation, it was

said, could be useful when interconnections and common interests

among the disputants did not exist. With some exceptions, all that

mediation needed was a dispute.

As discussed in chapter 1, the dynamic and rapid development of

mediation provoked some early resistance and dismissals, particularly

from the legal profession.

4

This legal opposition was understandable.

Unlike negotiation, mediation was not a well-known process to most

lawyers and judges. Mediation methods also appeared to stand in stark

contrast to the legal profession’s preferred disputing process — court

adjudication. The adversarial thinking of many lawyers and several

long-standing ethical principles, such as not acting for clients with

conflicts of interest, seemed at odds with what was expected from a

mediator, particularly if the mediator was also a lawyer. The prolifera-

tion of many non-lawyer mediators also threatened to further erode, if

not outright challenge, both the economics and status associated with

the privilege of “practising law,” for which the legal profession had

been granted a statutory monopoly. Practising law, it had been

assumed, included many of the negotiation, problem-solving, and

other dispute resolution activities that non-lawyer mediators now were

performing. Were non-lawyer mediators engaged in the unauthorized

practice of law? It was not surprising that mediation proponents

caused a considerable stir in the legal community.

However, the difference a day makes is perhaps best illustrated in

the following two quotes, the first from an address by the Chief Justice

of British Columbia Supreme Court in 1989 “putting the boots to

ADR,” the second from a brochure promoting a 1994 ADR conference

sponsored by the Canadian Bar Association.

ADR is often supported by well-intentioned people who, for a variety

of reasons, are anxious to reorganize society and procedures of courts

with naive, theoretical concepts of humanity and efficiency . . . soci-

4 For an early chronicle, see A.J. Pirie, “The Lawyer as Mediator: Professional

Responsibility Problems or Profession Problems?” (1985) 63 Can. Bar Rev. 378.