The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Mediation as a Subversive Activity
By Robert D. Benjamin

Remembrances of Times Past—A Brief History and The Origins of Mediation.

"Be careful of what you wish for . . . you may get it," is the old adage that is nowhere more relevant than to the advent of mediation into our cultural-legal landscape. Those around long enough to remember the beginnings, the mid to late 1970’s, sometimes wondered if mediation would ever be viewed by the traditional legal order of judges and attorneys as anything other than a new age fad. Now courts and legislatures throughout the country are developing mediation programs; you know mediation has arrived because even though the formal use of the process began in California, the remote interior region of the Country-Illinois, Missouri, Indiana, Kansas, Iowa and Tennessee among others-have begun programs, despite its’ origination on the coast. Mediation, as a generic process-a third party facilitating the management of a dispute between others-has of course been around since the beginning of time; mediation as a formally institutionalized process, however, legitimated, accepted and adopted as part of the traditional legal system, is a recent and significant phenomenon.

One would be hard pressed to find another time in recorded history when people in conflict have been actively encouraged to consider the notion that they are better suited to settle their dispute than the courts. Abraham Lincoln clearly enjoined disputants to negotiate their differences, but did not venture much beyond that good advice to suggest an effective place or means to do so. So now we have legislation and court rules providing for mediation, programs to provide services and, of course, rules and regulations to monitor those services. We’ve got mediation galore; between the public programs and an ever increasing number of private mediators seeking to ply their trade, one could be led to believe business is booming and that we have gotten what we wished for. Maybe, maybe not.

There now looms over us and among us serious question as to what mediation is, who owns, rules and regulates the practice and how it is done. The question is important, not just for those familiar with mediation practice, but for clients considering mediation, other professionals (lawyers, mental health and business) who work with mediators, and perhaps especially for judges or other policy-makers who may be planning mediation services or programming. The issue goes to the heart of the nature, quality and efficacy of mediation practice in the coming years.

Judges, court personnel and legislators, who have in the past been slow to accept or understand mediation, are presently not at all hesitant to set standards for mediation programs. Some lawyers and legal theorists are suggesting that mediation is essentially the practice of law; or at the very least requires the knowledge and skill which is solely the province of attorneys. (C. Menkel-Meadow, NIDR News, Vol. III, No. 2, March/April 1996). In Indiana, for example, non-lawyers are not allowed to serve as court registered mediators in civil and commercial disputes, and in many states, court certified mediators are only allowed to manage "custody" (sic parenting responsibility) disputes.

Before we blame those outside the field for trying to "take over" mediation, however, there are not a few mediators in the field who seek licensure of practice based in the belief that the public needs to be protected from unscrupulous or incompetent practitioners. In 1997, the first such legislation was introduced in California, without success, but stay tuned. One is left to wonder who is being protected from whom and from what? Is the public the object of our concern, or are we seeking to bolster our prestige as a real profession?

Further, within the field, debate continues between those who are self described "evaluative" (the mediator gives advice and recommendation to the parties) and those who are "facilitative" (the mediator is strictly limited to managing the process). This discussion is essentially the same but takes on varying forms as "transformative" mediators seek to distinguish their approach from "regular" mediation, or those who encourage a "med-arb" model or "caucus style" mediation pursue their style preferences. (R. Benjamin, Academy of Family Mediators, Mediation News, Winter 1994, and Winter 1998).

The core of all of these discussions is of course the role of the mediator and the extent of his or her involvement in the issue/dispute outcome. Sometimes these discussions turn nasty and variations in mediation style are presented as ethical issues: one practitioner’s ethical breach may be another’s style. Our dislike and sometimes expressed disrespect for alternative styles of practice, follows true to form how we humans handle conflict, notwithstanding the fact that those involved are themselves professional mediators. Specifically, we save our strongest animosity for those closest who appear to betray us-they are our "intimate enemies." (E. Pagels, THE ORIGINS OF SATAN, 1995).

Those who may not understand mediation can be excused their misunderstanding, those who should know better at the very least undermining the integrity of the field, and may even be traitors. In any event, while such discussions are difficult, they are valid, necessary and healthy for the field to progress. They are, without doubt, the byproduct of the acceptance of mediation as a mode of conflict management. Such discussions about the nature of mediation are especially critical as courts and other public authorities encourage and sometimes require conflicting parties to attempt mediation prior to access to court. The pressures of the marketplace also force consideration of mediation style.

In this context, then, recalling some of the original thinking about the purposes and design of mediation is useful, if for no other reason than to note how some of those notions have shifted, been modified, or been diluted and misdirected. To be sure, no one possesses a trademark on mediation, and there never was an original constitution of practice to which one was obligated to be faithful. In the mid 1970’s, when divorce and family mediation, and some civil and commercial mediation was beginning to be regularly practiced at varying places around the country, the focus was simply allowing disputing parties to have greater involvement and control over their own decisions, so as not to be quite hemmed in by the requirements of the traditional legal system. There was a basic belief that parties, if given sufficient information and direction, could make better decisions for themselves than lawyers or a judge could make for them. While there is no doubt that there was some measure of anti-lawyer sentiment, (O.J. Coogler, STRUCTURED MEDIATION IN DIVORCE SETTLEMENT, 1978), the primary purpose was client self-determination, albeit "in the shadow of the law", (R. Mnookin, and L. Kornhauser, "Bargaining in the Shadow: The Case of Divorce", 88 Yale L.J. 950, 1979). In any event, in those early days, with the exception of California and one or two other states, almost all mediation was done outside of the court system. The notion of mediation was relatively simple and straightforward: the mediator was to work with the parties to help them fashion an agreement they could live with regarding parenting responsibilities, property division and financial responsibilities. No bells and whistles; the mediator was either helpful or not and the parties either came to agreement-or not. The attraction for practitioners was a direct, common sensical, and constructive method to aid parties in conflict unhampered by traditional role definitions.

A Good Idea Spoiled?

What is apparent since the rapid advent of courts, agencies and legislatures into mediation since the early 1990’s, is the persistent effort to set standards and regulations for mediators. Not suprisingly for the human species, especially in our techno-rational culture, there appears to be an inbred need to set rules. Any time two people get together to organize an activity, the first thing they want to do is set rules for the third person or other un-named people. The practice of mediation has been no exception.

The difficulty in all of this rule setting and mediation programming is that mediation is a subtle and perhaps even fragile process that may be disrupted and even undermined by the good intentions to manage it. This is especially so when the mediation management authority is the State, no matter how well intended the State’s purpose. If the core of mediation is to allow for parties to self-determine the management of their dispute, then a court connected (works for the Court) or court related (referred cases by the court) mediator may be serving the purposes of the court, not the parties. Courts are in the business of moving cases, that purpose may overlap those of mediation, but sometimes may be in conflict.

Mediation must, by definition, be voluntary. If the court mediator is wittingly or unwittingly doing the bidding of the court, that voluntariness may be easily compromised. The question becomes "Who is the mediator’s client–the court or the parties?".

In theory and in practice, the mediator’s duty is to the parties and should not be confused with the court’s desire to settle cases and get them off the docket. If that happens, well and good, but that is not the sole purpose of mediation. Mediation should provide the opportunity for parties to come to agreement, not the obligation. Notwithstanding stated intentions to the contrary, there may be an implicit expectation that they will settle which may be as strong as any expressed pressure to settle.

There are a number of ways the court’s pressure to settle or otherwise direct the outcome of a matter can play upon both the parties and the mediator which can dilute or corrupt the core purposes of the mediation process. First, not often, but sometimes, the court (judges, mediators or others) breach their own protocols of confidentiality in mediation and inquire of the mediator or others connected with the case as to which of the parties was most resistant to settlement. In Florida, for example, some mediators, lawyers and parties have reported that their reluctance to settle was considered in the ultimate court determination of the dispute.

Second, mediators in court referred matters are sometimes instructed what the law or policy of the court is understood to be in certain kinds of cases or issues such as in "custody", child support, or the division of property. While the law is an important consideration, it should not be determinative in the mediation process if the parties are to come to their own agreement. Sometimes mediators and even lawyers and judges confuse not following the law with doing something illegal. Many states, (Indiana, Tennessee, Missouri) are now requiring that the law be included in mediation training programs. If that were being done merely to help the mediator-to-be to appreciate the legal ramifications of the decisions the parties might consider, there would be no concern; too often, the intention is to direct the mediator. As well, regardless of intention, many mediators draw the inference from the training that they are expected to follow the law as instructed.

Third, sometimes the design and intention of the mediation program explicitly or implicitly obligates a bias for the mediator to adopt. In "custody" mediation program, the purpose is to protect the "best interests of the child." In Americans with Disabilities (ADA) matters, the purposes of mediation are to enforce the law, and likewise in the mediation of Federal, "4D", child support enforcement issues. While each of those programs have noble purposes, their ends may be at odds with the core principles of mediation.

Fourth, sometimes mediation programs seek to direct the style and approach of mediation practice. In Marion County (Indianapolis) court mediators are not allowed to meet separately with the parties. In other programs, mediators are expected to be "collaborative", transformative", or evaluative in orientation. Those directives are akin to telling a lawyer how to practice law or the approach to counseling a therapist should have.

Fifth, sometimes political forces are at work to shape and direct the mediation process. In some programs, the mediator is precluded from addressing certain issues, for example, a mediator addressing parenting responsibility issues is disallowed from considering financial responsibility or property division issues for fear of offending lawyers who might view mediation as a threat to their business. Experienced practitioners, whether mediators or not, recognize that many parenting disputes are financial disputes in disguise and the separation of the issues is artificial and impractical at best. The message to the parties may be in effect, we will let you make decisions about some issues but not others. In any event, the core principles of mediation are compromised.

Sixth, some mediation programs confuse the role of the mediator with that of an evaluator or state investigator from the outset. The obligation of a mediator to report child or spouse abuse, or in the case of a state bar association’s lawyer grievance mediation program, to report any other discovered violations, contradicts principles of mediation. Again, such requirements might be noble and perhaps even otherwise legally obligated, but they are at odds with the purpose of mediation.

The argument and justification for most of these noted compromises, and others, are political necessity and legal requirements if the mediation program is to be conducted under the auspices of the state. Every mediation program administrator will note that while these risks are present, on the whole the benefits of government sponsored mediation services outweigh them or they are negligible in practice. They may be right and the advantages of providing mediation have been considerable, not the least of which is the legitimacy and validation given to mediation as a viable mode of conflict management. But the pragmatics beg the question; in the long run, will mediation be seriously compromised or even fatally injured? If mediation, as it is programmed into the legal structure become just another cog in the system to move cases or enforce preset notions of the correct result, will people begin to reject the process?

In short, mediation may become merely a means to coerce social harmony and order. (L. Nader, "When is Popular Justice Popular?" in THE POSSIBILITY OF POPULAR JUSTUCE: A CASE STUDY OF AMERICAN COMMUNITY JUSTICE, E. Merry and N. Milner, eds, 1993). We may in effect be saying to people, you can decide whatever you want as long as we agree with your decisions.

The Limits of Rationality—Mediation as a Subversive Activity.

It may well be that if mediation is to survive and continue to become an appropriate alternative and adjunct to the established legal system, it must be and remain a subversive activity. That is to say remain outside government control, regulation and protection, for better or for worse. This is admittedly a pretentious notion, and perhaps unrealistic to boot, but nonetheless necessary to consider. At the very least, the unrestricted and heretofore unexamined adoption of mediation-a process that is intended to allow people to step aside or outside the strictures of the law-by the same public agencies and authorities who enforce the law is dubious and questionable at best.

Those who have actively sought to bring mediation into the institutional structure as an effective means of settling conflict have a belief system that incorporates two fundamental premises: one, that the mediation of disputes is a more highly evolved method of resolving conflict and is the manifestation of a more sophisticated political order; and two, that government and public authorities can and should rightly include that process in the established legal order to encourage settlement of disputes. They believe in the idea of progress and that government can deliver and provide for the progress. Said more facetiously, some people have never met a law or regulation they did not like, and that if mediation is a good idea, then it should be incorporated into the schema of the legal system if we have good laws, then people will be better citizens as a result. We have become, in a very real sense, prisoners of good government; the belief that if everything is done openly, above board and rationally, then government and society will function in a more orderly fashion.

As a society, we are preoccupied with law, rules and regulations. Congress and state legislatures pass laws by the ton, many business organizations have employee handbooks that grow thicker by the day, and people, including mediators, desire set, precise standards of practice. The thinking is that if behavior is controlled by written codes, there will be more order, less chaos and; accordingly, less conflict. Everyone will know what to do and when and how to do it. This is essentially the "myth of rationality" (R. Benjamin, "The Physics of Mediation: Reflections of Scientific Theory in Professional Mediation Practice" 8 Mediation Quarterly 91, Winter 1990). While some rules are necessary, too many of them give the illusion of some proverbial cookbook or formula for the resolution of every issue or infraction of rights theory might address.

There are many bad unintended consequences as a result of too much law or too much reliance on rules. (E. Tenner, WHY THINGS BITE BACK: TECHNOLOGY AND THE REVENGE OF UNINTENDED CONSEQUENCES, 1996) First, if people overly rely on set rules to direct their behavior, they will tend to abdicate the use of their own discretion and common sense; second, the very rules they rely upon, because they are so numerous, may be contradictory and confusing. (P.K. Howard, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA, 1994) Too much law may yield uniformity of result, but not necessarily the justice we desire. For example, child support guidelines treat everyone the same, but there can be no pretense that the same rules applied to parties in Chicago are fair to people in Peoria, or vice versa. There are, in short, limits to rationality; the expectation that all issues and problems have a clear, rational answer is not rational. (J. Elster, SOLOMONIC JUDGEMENTS: STUDIES IN THE LIMITS OF RATIONALITY, 1989)

What mediation is intended to provide is a means for parties to re-assert the exercise of their own discretion and to take back a sense of control over their lives that rules and laws may have undercut. Mediation, then, is inherently at odds with the established order. In a very real way, the mediator forms a conspiracy with the parties in conflict and says, in effect, here is what the law may be, what do you people want to do?

By contrast, if mediation is institutionalized in the traditional structure, the mediator may be relegated to being an agent for the traditional system, or worse, an apologist for the established order, fair or not. Mediation was originally conceived and borne out of the circumstantial necessity to give disputing parties a way around being intruded upon by courts, lawyers or other professionals who otherwise presumed to know better for them and their children and what they should do.

The profession of mediation is young and its’ future is as yet unclear. It may become the manifestation of a more highly evolved means of managing conflict, but if so, only because it seeks to preserve in an ever increasingly regulated society, a means and a place of refuge for people in conflict to retain control over their own lives. Ironically, the chances of mediations’ survival as a viable mode of conflict management may be better if it is allowed to remain a subversive activity. If mediation continues to be co-opted and assimilated into the traditional legal system, and forced on people, whether intended or not, for the right reasons or not, then the essential purposes and usefulness of the process may be lost.

Robert D. Benjamin, M.S.W, J.D., is the Director of Mediation and Conflict Management Services in St. Louis, Missouri. He has been a practicing mediator since 1979. A former president of the Academy of Family Mediators, he presents mediation and negotiation training programs nationally and internationally, and has written extensively on the nature of mediation and the role of the mediator. He can be contacted at

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