Publications

THE THREE MEDIATORS – A PARABLE

By Stephen L. Shields

President, TAPM

sshields@jsyc.com

With all due respect to Roberto Assagioli,

author of the Stone Cutters parable…

 

The Interviewer questioned three Mediators about their experience mediating disputes with self-represented parties.

 

The first Mediator says:

To be honest, I just want to keep my Rule 31 listing because I’m trying to develop a mediation practice.  As you may know, Supreme Court Rule 31 requires (or at least encourages) that I conduct pro se Mediations to do that.  I really don’t like all of the emotions of pro se litigants.  And as a lawyer/mediator, it becomes obvious to me pretty quickly who has got the weaker case, so I try to achieve a quick settlement.  Of course, this saves Court time.  In fact–now that I think about it–I believe that’s the underlying reason for Day of Court mediation – to save time and money.  The Courts get backlogged, there is a lot of delay and adding new judges would be costly.  So I do pro se mediations and comply with Rule 31 and save the Courts time and money.  By the way, I was surprised when the Judge ordered the pro se litigants to mediation.  I thought mediation was voluntary.

 

The second Mediator says: (after listening to the first mediator)

Of course I want to comply with Rule 31, but I think there are other reasons why I mediate pro se cases. One obvious reason is it helps me develop my skill set.  Some of these mediations can be very challenging – particularly those that involve relationships.  In many disputes there is an on-going connection between the parties – and I like the experience of helping to preserve that relationship.  In fact, I think mediation does a much better job of preserving relationships than the adversarial court process, which to me is an important consideration for promoting mediation. And I don’t have a problem with “Court ordered mediation”, particularly when it involves relationships, because after I explain to the parties the benefits of mediation, they have, in my experience, agreed to go forward – voluntary mediation!

 

The third Mediator says: (after listening to the first two)

Well I agree with my friend that when it comes to relationships, mediation usually brings about a better result.  Due to its non-adversarial process, mediation is far more capable of reconciliation than courtroom adjudication.  In addition, I have thought about a few other points; they are a little hard to articulate, but let me try.  I understand that from an access to justice standpoint the litigants are “in court” and “before a Judge”, but that doesn’t accomplish the goal of providing “access to justice”.  I’ve watched pro se litigants in Court.  No matter how plain the law and procedure is written, it’s still confusing for many self-represent parties.  I’ve heard Judges say, “This is not Judge Judy’s Courtroom; there are rules of procedure and rules of evidence that you must be aware of and follow”.  I’ve seen pro se litigants’ cases dismissed based upon legal technicalities. As a result, I think that mediation and its informality provides a greater opportunity for “access to justice”, and I even think it has a broader goal of potentially bringing about a more civil society.  Now that I think about it, I believe that mediation should be offered not only in cases filed in court, but in disputes that have not yet and may never come to court.  I think access to justice can be achieved in different forums – mediation and court.  I just think for most pro se litigants, mediation is the better forum.

 

The third mediator then turns to the Interviewer and says, “By the way since you are a more experienced mediator, what are your thoughts about the private and public value of mediation?” (To be continued)