In my last blog I asked the question, “Is Mandatory Mediation an Oxymoron?” From the responses I received, it seems clear it is not.
There are all sorts of reasons to require mediation, the most important being that experience shows it works. Once parties are in the room they typically participate in good faith, whether they showed up through mutual agreement or external requirement. And the statistics show little difference in success rates between compulsory and voluntary programs.
Mediators are usually paid by the parties in mandatory programs. While that might seem to present problems, once again, experience shows it does not. Parties share the cost and that cost is typically far, far less than the cost of litigation. Often pro bono or reduced fee counsel can be found for cases where a party has limited resources.
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Jurisdictions throughout the country are increasingly establishing mandatory mediation programs. 
At first glance, “mandatory mediation” would seem to be an oxymoron to the mediation community where “self-determination” is a fundamental tenet of theory and practice, trumpeted for years as one of mediation’s highest goals.
Is forcing people into mediation contrary to a fundamental underpinning of the field and therefore doomed to failure? If it is, why are more and more jurisdictions adopting mandatory mediation programs? And, most importantly, does mandating mediation work?
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In my last blog I introduced the subject of anger at a mediation. Many people tend to associate anger and mediation with snarling divorcing couples, arguing over who is right and who is wrong.
While this certainly happens, anger can be just as profound in commercial cases where parties may feel equally wronged by each other. At a minimum, one side does. This can present the mediator with a quandary:
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There are very few emotions as destructive as anger. Shootings, murders, rapes, spouse and child abuse, intra-family squabbles (big and small), road rage, divorce, gang violence, are all fueled in part by anger. Anger is usually an aspect of any litigation, although even mediators must acknowledge that litigation as a dispute resolution mechanism is light years ahead of violence.
Anger and violence go back a long way. Whether we take the Bible as historical truth or a fundamental mythos of our collective Western unconscious, the first act of violence is primeval: it occurs between the very first human offspring. Most of us think we know the story, but just in case, the entire events are described in only seven short verses, as follows (Genesis, 4:3-9):
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It is fairly well accepted that divorce mediation is a far better way to handle the details of unwinding a marriage than litigation. If there are any assets and any kids, the parties typically know the details of both, and with proper guidance are capable of figuring out how best to proceed so that the kids and assets are dealt with fairly and everyone can move on to leading happy and productive lives.
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Well, pretty much. But first, let me backtrack.
What is meant by success?
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Employment cases can present difficult problems for the parties, their attorneys, and the mediator. The employee often feels wronged, just like a spouse in a divorce case. The employer may think the employee is improperly seeking money they are not entitled to and concerned that a settlement could generate more litigation from other employees. The employee may have worked for the employer for years with good evaluations; yet the employer may feel the employee has always been difficult to deal with. These can present seemingly intractable problems.
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Our last blog addressed the importance of using patience during a divorce mediation. Divorce mediations necessarily take place over time since the parties need to come to terms with the emotional aspects of their decision making. Couples are most often (though not always) together in the same room, since a critical goal of divorce mediation, especially when there are children, can be enabling the parties to communicate after the divorce is over.
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Many factors affect whether a divorce mediation is successful. One factor can be how the mediator and the couple are able to use patience as a tool.
It is often unrealistic to expect patience from the couple. They may walk into the room angry, depressed, afraid, wanting to “get this thing over with,” or even seeking reconciliation. Or one side does. At a minimum, the parties have been unable to resolve whatever conflict caused the need for mediation in the first place. They have already spent time and money, much emotional energy, and experienced no shortage of aggravation.
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