When we listen, people talk. The phrase is ubiquitous among the Harvard law students and community members that make up Harvard Mediation Program, and it alludes to mediation’s unique capacity to resolve conflicts.
I recently, very enthusiastically, accepted a spot in this program. As a new member, I will complete 32 hours of mediation training on the Harvard Law School campus. Then, I will begin mediating court disputes twice monthly for about a year – or longer if I choose to stay involved.
Through my involvement, I hope to learn new skills that I can bring back to Maine and incorporate into my own practice.
In Maine courts, mediation plays a vital role – particularly in family law. In fact, Maine requires mediation between divorcing spouses in many cases. This requirement is not about the State trying to convince couples to stay together. It is about trying to foster a functional and cooperative relationship following their separation, especially when children are involved.
By contrast, old-fashioned litigation often further entrenches people against one another. As a key State Commission Study Report on the issue put it:
“A process that calls itself ‘adversary,’ promotes ‘confrontation,’ labels the other party a ‘hostile’ witness and ultimately produces a ‘winner’ and a ‘loser,’ could not be worse for resolving how two separating parents will continue to have the best possible relationship with their child and each other.”
Litigation – a trial, in other words – depends upon the notion that each case has just one set of facts. Determine the facts, apply them to the law, and reach a fair judgment. Why, then, do losing parties so often feel disenfranchised and bitter?
People experience and perceive situations very differently from one another. As a result, each party involved in a dispute tends to see things rigidly through their own lens. As one of my trainers at Harvard said, “it’s not that there are two sides to the story; it’s that there are actually two stories.”
Mediation, in contrast to litigation, allows each story to remain intact. That is because mediation puts the facts on the back burner, and instead focuses on helping each party identify their respective interests. The result, often, is a final agreement designed by the parties themselves, and tailor-made to the situation at hand.
Is mediation always successful? If “success” means reaching a final agreement and avoiding a trial, then it is not always successful, but it often is. If success means fostering a better sense of understanding and common ground between parties – especially in family matters – then it has a very strong track record indeed.