Originally from Alternatives to the High Cost of Litigation

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As mediation is promoted globally, we must continue to examine not only all of the different things that are being done, but also what has been left undone.

One largely untrodden path for the skills and insights of mediators is upstream—that is, at the point in relationships when conflict is budding into a full-fledged dispute, but before advocates are summoned, positions have hardened and, perhaps, the best opportunities for a problem-solving approach to conflict are lost.

Some years ago, my co-author Dwight Golann conducted a survey of mediators who had mediated different kinds of cases involving continuing relationships. See Dwight Golann “Legal Mediation: A Process of Repair–or Separation? An Empirical Study, and Its Implications,” 7 Harv. Negot. L. Rev. 301. (Editor’s note: Stipanowich and Golann were co-authors, along with Jay Folberg and Lisa A. Kloppenberg, of “Resolving Disputes: Theory, Practice and Law,” Third Edition (Aspen Publishers 2016).)

His intent was to learn more about the situations where mediation plays a part in restoring a relationship or even brings about emotional reconciliation. He found that only about 17% of relationships were restored, although in 30% of cases a resulting settlement incorporated so-called “integrative” terms—terms that were more valuable to a party than a purely monetary solution.