Hello Darkness, My Old Friend

Many years ago, when being trained for mediation certification, we were taught to tell the parties that mediation was something of a golden process, to use terms like "self determination," "non-adversarial" and "option building." We were told to make people "comfortable." In short, Rainbows and Unicorns. It only took a few mediation sessions to find out that Pollyanna view only served to build false expectations, and made settlement more difficult, not less.

The truth is, my job as a mediator is to lead the parties down a dark path to a place they do not want to be. Mediation settlements are achieved by parties who either think they have not gotten enough, or who think they haven given up too much. Both parties typically have swallow hard and sign off on an agreement that they are equally unhappy with. Human nature is such that even mediation conferences are, in their own way, adversarial. Each side tries to convince the other that either the law, the facts or both ore on their side. No amount of telling them that I am NOT the judge is likely to change that.

I have learned more about people and human nature in general in conducting mediation conferences than I ever did litigating. The greatest satisfaction in being a mediator comes of shining a light to overcome the darkness of the path folks are travelling. What that light reveals is not always pretty, but usually shows the way out of the woods.

Now, let's get this thing settled.