Mediation with a small “m” or Mediation with a capital “M,” and what’s the difference?
It’s a matter of style and paradigm.
In general, the term “mediation” can refer to any number of different types of intervention in conflict. The hallmark of mediation is that a third party neutral steps in between two (or more) parties and helps to broker an agreement between them. Mediation can be as simple as a parent guiding small children who have a conflict, or it can be as complex as a world power brokering a deal between two competing factions in an international dispute. It can involve two parties (as in a divorce mediation), or it can involve multiple parties and interest groups (as in a church congregational mediation), or it can involve thousands of people (as in a truth and reconciliation process). The key, distinguishing feature in all of these is the deliberate role of a trusted neutral who has expertise to bring parties together, in a safe way, and to build bridges of communication and understanding.
On the other hand, there are so many different types of mediation that the term “mediation” is about as descriptive as the word “fish.” Yes, all fish live in the water. But beyond that, there are thousands of different types of fish, some large and some small, and each type of fish is adapted to its own type of environment and role in nature. Similarly, each mediator is unique and each mediation is unique. A mediation conducted in one context might be a very different style from a mediation in a different context, and the style of each mediator is also unique to that person or school of mediation.
This distinction between different styles of mediation is especially important in my practice, since a large part of my work is in the area of divorce mediation or mediation of situations involving family agreements with regards to estates or elder care. A mediation that is convened after parties have already filed a court case is what I refer to as “mediation with a small m.” In a case where papers have already been filed, the parties are already in the adversarial mode of A versus B in a lawsuit. As such, they have already asked a judge to decide their case, using standards derived from law and based strictly on evidence that can be introduced in a court of law. Divorce mediation in the context of a litigated case is most appropriately considered to be a facilitated settlement conference (or mediation with a small m) as opposed to the wide ranging, guided conversation that is more typical of cases that are not in litigation (mediation with a capital M). Mediated settlement conferences are conducted usually by attorneys who have been trained in facilitation, with attorneys for both parties present, involve positional bargaining and legal posturing, and settlement negotiations are generally focused on what a court would order.
In contrast to this, my practice focuses on what I call “Mediation with a capital M.” Hardly any of my cases involve referrals from courts or cases in which parties are already involved in litigation. In my practice, the parties come together before they are adversarial, usually before they have hired attorneys, and before they have engaged in a court process. The parties sit together in a room and, in a process guided by the mediator, discuss budgets, values, issues. Rather than focus on what a court would order, the parties focus on finding solutions that feel fair and workable, meet their needs. and are sustainable. What a court would order is relevant, but not necessarily determinative. What a court would order shows what neutral judges think is fair, in general, in a wide variety of cases. However, in a true mediation this information is not the only, controlling measure of fairness. Other measures of fairness include what the parties are each comfortable with, whether they have a gut feeling of fairness, whether the numbers objectively line up and look fair to them, and whether the agreement as proposed is going to be sustainable and workable in the long run. In short, in a case involving true, non-adversarial mediation, the parties retain much more control over their agreement, retain flexibility in their own give and take, and are more likely to achieve solutions that meet their own criteria for measuring fairness.
What happens if the parties end up unable to agree? Generally speaking, this is where the Mediator adds value. There are many ways of helping parties reach agreement that is not just a sour compromise but rather is authentic approval. The mediator’s work is to build that bridge to authentic agreement. After the parties reach agreement as to every issue that needs to be decided, then legal papers can be filed in which the parties ask a judge to approve their agreement and make it into an order of the court.
In “Mediation with a capital M,” lawyers are often utilized to give legal advice. Lawyers are often consulted during the negotiations, to give feedback about what a court would order and to raise any red flags about issues that should be addressed but may have been overlooked. Lawyers are also needed to represent the parties in any legal action that may be needed to have the agreement made into an order of the court (e.g. a divorce decree). The goal of “Mediation with a capital M” is not a “cheap solution” but rather a better solution. By separating out the process of reaching agreement from the process of implementation of the solution, the parties are able to retain more control and reach their own agreement more cost effectively than if the issues were decided by legal wrangling in a litigated, contested case.
If you are interested in exploring this concept further, feel free to contact me.