In 1995, I read Christopher Moore’s book, “The Mediation Process – Practical Strategies for Resolving Conflict.”
That same year, I completed two mediation training courses, totaling 60 hours.
I never actually became a mediator as such, but I look back fondly on Moore’s book and recommend it to law students.
While it may seem self-evident to folks more savvy than I was in 1995, there is a spectrum of dispute resolution options:
Avoidance: People often avoid each other when a conflict exists between them. Perhaps the issue is not that important to them. Or possibly they feel that they do not have what it takes to effect change for the better.
Informal discussion: Per Moore, “this is probably where the majority of disagreements end in daily life.” Some resolution is reached or, alternatively, the participants speak their peace and allow the matter to drop.
Negotiation: Disputing parties “voluntarily join in a temporary relationship.” In which they communicate, enlighten each other, exchange resources and, hopefully, work out a deal.
Mediation: In mediation, disputants use an acceptable, impartial, neutral third party to facilitate formal negotiations. A mediator has no decision-making authority, but his/her job is to help the parties reach an amicable settlement.
Administrative decision: This is not always thought of, but in some organizations may be available. “In this process, a third party, who has some distance from the dispute but who is not necessarily impartial, may make a decision for the parties in dispute.”
Arbitration. This is a process in which disputants employ an impartial and neutral third party to be the decider, typically in a quasi-judicial proceeding.
Litigation: This is the avenue that law students learn the most about. Disputing parties hire lawyers (or act as their own counsel) and go to court, where a judge and possibly a jury are involved in resolving issues in dispute.
Legislation: “Usually used for larger disputes affecting broad populations,” this involves getting a law passed, at the local, state or national level.
Extralegal approach: This last category is called what it’s called because “it does not rely on a socially mandated – or often socially acceptable – process, and uses coercion to force an opponent into compliance or submission.” It is divided into two subcategories: nonviolence and violence.
In the end, though, Moore’s book is a promo for mediation, a process that is available to anyone at anytime.
I’ve neither the time nor the space to set forth the various misconceptions people have had over the years about mediation. Suffice it to say that it is a facilitated effort toward bringing about an agreement. And no one is forced to agree! That’s the standard answer to the inapt query, “Is mediation binding?”
You’re not bound by something unless you agree to it or a decision is made by another. Mediators don’t make decisions.
On another note, time is running short on the “Name that Change” contest I announced a few weeks back. I’ll allow submissions through March 21.
Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.