Mediation as Strategy

Mediation is a method of problem solving. Problem solving is one of the strategies associated with the dual concern model. One of the implications of viewing mediation as a method of problem solving is that it involves two or more parties who are highly interested in the outcome of their dispute; that is, each side wants to win. Were this not the case then one of the parties would have resorted to another of the strategies suggested by the dual concern model; had either or both of them decided to compromise, avoid or accommodate then mediation would not be necessary.

If they are evenly matched in terms of resources and ability mediation is an excellent method for the disputants to achieve the best possible outcome. However, Ellen Waldman in her 2011 book Mediation ethics: Cases and commentaries, acknowledges that power disparities are often an issue. She writes, “Rarely do disputants enter mediation with exactly equal amounts of power (p. 87).”

That disputants must agree to mediate has an interesting implication in and of itself: at least one of the disputants can foresee a favorable outcome as a result of mediation that might not be available were they to litigate or let the matter drop. What advantages might accrue to a set of parties willing to let a mediator help them resolve a conflict? Mediation is said to be quicker, less expensive and allowing for more personalized solutions than litigation. However, avoiding such a dispute is quicker and probably cheaper still.

We are left with, then, a set of parties to a dispute who have done, at least, some rough calculations and decided they are too invested in their conflict to let it drop. They have also decided, as part of their calculations, that mediation is the easiest path to their ultimate victory. Waldman writes that there are two choices for those who decide to forego mediation: “maintain the status quo or litigate (p. 98).”

When there is a dispute that is important enough that neither of the parties is willing to drop it, where there is obviously some incentive to both parties to avoid the court system, at least initially, I propose that the party that possesses the ability to better withstand the costs of litigation effectively controls the situation. Though that more powerful party could choose to mediate for a number of reasons, I surmise the want of an equitable outcome is rarely at the top of a list of the reasons why a more powerful actor would agree to mediate a dispute. Mediation seems like the cheapest way for the more powerful party to achieve the outcome they desire.

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