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Tug of War

“People who think they know everything are a great annoyance to those of us who do”. (Isaac Asimov)

Mediators who do not allow the principle of self-determination to guide the mediation’s outcome will risk seeing that mediation fail.

Mr. Mark Baer, a mediator who writes interesting articles, posted a recent study about mediation and shared it with us on his LinkedIn page. The study focused on family law mediation in California, and the data developed as part of that study identified an interesting fact. In the state of California the field is saturated with retired judges and attorneys.  Having wrapped up their legal career these judges and attorneys turned to mediation as a second career.

I found several other facts in this study to be interesting as well. Their careers and experiences did not prepare them on how to use mediation effectively. The study reinforced the basic fact that good mediation combines skill, training, and experience. The researchers concluded in fairly blunt terms that mediation requires skills that …”judges and lawyers do not possess by virtue of having decided cases in a courtroom…”, and in that state surprisingly few retired judges and lawyers have any formal mediation training.

The study further disclosed that there is a higher instance of these mediators pressing or directing the parties in these mediations towards a preferred or suggested outcome, such that a higher number of mediations didn’t hold up, and the parties to a dispute reverted back to litigation. It confirmed what I had seen at an anecdotal level.  The dry nature of the data understates the burdens these failures place on those who find themselves back in court

Mr. Baer has written before about the risks attorneys run when they, under the guise of mediation, begin to subjectively evaluate the actions and positions of the parties and attempt to lead to or suggest a particular settlement. It is a risk that I have written about as well in my posts.

A successful mediation changes the perceptions and relationships of the parties in dispute. It breaks down the distrust that the parties have towards each other, and helps rebuild trust. Successful mediations encourage the parties to decide the outcome(s) they want through consensus by using the process provided by the mediator.

When the process is set in motion correctly, the parties are able to step away from entrenched positions and it allows them to look at alternatives; and looking at alternative solutions is at the heart of successful mediations.

The message here is to think carefully about how you choose a mediator or a third-party neutral to assist in resolving any potential dispute. Ultimately, you need to have confidence in the outcome of any negotiation, and be well satisfied that it sets things back in balance to the point you can move forward.

We at CDCI follow this principle and encourage you to contact us if you have any questions. You can reach us at 832-452-8537, or contact us through We also respond to texts messages.