Originally from Dispute Resolution Journal

As mediation has become a more common approach for resolving a diverse array of legal and societal disputes, practitioners and parties alike have made enthusiastic claims about its many positive attributes. How true are these claims? Should we believe everything we hear about mediation? Since the novelty of mediation has worn off, many of the claims that have been made by mediation zealots need to be examined in a more critical light. This article examines several common assumptions about mediation in order to open a dialogue among practitioners and parties about the limitation as well as the promise of mediation.

The mediation process is an indispensable device in the “tool kit” of many dispute resolution professionals. Early in the last decade, as mediation became an institutionalized step in a diverse array of dispute resolution systems, mediators and disputants alike were generous, even effusive, in their claims about its positive attributes.1 Whether viewed as pure “hype,” or as “hyperbole,” some of these claims have fallen conspicuously short of reality. In other fields besides the author’s “home turf” of employment disputes, much of the naive enthusiasm surrounding the mediation process has also begun to wane. In many quarters, the process has ceased to be viewed as a panacea and is, instead, seen with a combination of realism, cynicism and even contempt. Some people may feel that they obtained sub-optimal outcomes from the process in the past. Others in the market for an adjudicated outcome may view mediation as little more than a toll booth on the road to litigation. Yet others may be disappointed that mediation does not always live up to all the claims its proponents have made for it. In other words, they may feel confused or misled by the hype and hyperbole surrounding mediation.

In order to create more realistic expectations of the process and preserve its integrity, many claims that have been made by mediation messiahs need to be reassessed in a more critical light. This article examines six fundamental beliefs about mediation. While it may be considered heretical to challenge these beliefs, the author’s irreverent goal is to overturn the bucket of conventional wisdom where it is kept. Provoking controversy and debate about the validity of mediation’s basic assumptions can set the stage for their examination in a more systematic and empirical manner by stakeholders and scholars alike.

True, this article contains no hard data or objectively derived metrics to challenge the often stated assumptions about mediation. All of the observations made here are based on armchair empiricism. However, the metaphorical armchair in question has cushioned the posterior of an active mediator/arbitrator and a keen observer of the dynamics of hundreds of disputes that have unfolded before him. It is also the armchair from which the author has trained roughly 2,000 fellow mediators and conducted countless discussions with fellow dispute resolution professionals over the last two decades.