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Back to First Principles: The Importance of Mediation in Conflict Resolution

In her insightful examination of mediation, Carrie Menkel-Meadow discusses why mediation is essential in resolving conflicts. She underscores that conflicts arise and persist through human interactions, but they can also be resolved by people. Key values include facilitating better solutions, enhancing communication, and ensuring participation in dispute outcomes. Mediation offers parties control over the process and outcomes, leading to higher satisfaction and compliance. Drawing from diverse disciplines, this approach addresses the psychological, social, and legal aspects of conflicts while promoting creative and tailored solutions.

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Back to First Principles: The Importance of Mediation in Conflict Resolution

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  1. Orange County Mediation Week Back to First Principles: Why We Mediate Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California, Irvine, Author, Dispute Resolution: Beyond the Adversarial Model (Wolters/Kluwer, 2011)

  2. Mediation Matters • “Conflicts are created and sustained by human beings. They can be ended by human beings.” • - George Mitchell “There is no intractable problem” -Desmond Tutu Summum ius. Summa iniuria. (The strictest following of the law can lead to the greatest injustice). --Marcus Tullius Cicero

  3. Our Basic Values • 1. Facilitating dispute/conflict resolution to help parties reach “better” solutions • 2. Fostering better communication between people • 3. Ensuring that outcomes are tailored to parties needs (and not just “interests”) • 4. Party participation in own fate- consensual dispute resolution • 5. Preserving, repairing or appropriately ending relationships

  4. Rationales for Mediation • 1. Parties desire control of dispute process • 2. Parties desire control of dispute outcome • 3. Greater satisfaction with or compliance with agreed to solutions • 4. More efficient process (time or cost savings) • 5. Courts’ desire to reduce litigation or dockets • 6. Focus on the possibility of the future • 7. More creative solutions • 8. New norm creation

  5. Our Basic Tools • 1. Care for the parties • 2. Care for larger community • 3. Ability to listen • 4. Ability to communicate • 5. Ability to facilitate negotiation of others • 6. Ability to structure process • 7. Ability to solve and help other people solveproblems

  6. Our Multidisciplinariety • 1. Psychology • 2. Social Work • 3. Law • 4. Education • 5. Accounting • 6. Engineering/Construction/Architecture • 7. Medicine/Nursing

  7. Our History • 1. Religion • 2. Labour • 3. Community • 4. Family • 5. Civil law • 6. Criminal law • 7. Restorative Justice • 8. International

  8. Our Critics-Why? • 1. Professional “turf” – lawyers, arbitrators, economists, psychologists • 2. Principled-need for “public” not private justice (Dame Genn –Hamlyn Lectures on Civil Justice and American “roots” of argument) • 3. Fairness and equality in the process • 4. Quality control? • 5. “Settlement” vs. “Justice” (law enforcement) • 6. Too much focus on future—what about past?

  9. Our Answers: Why We Mediate • 1. Broader, deeper solutions to problems • 2. Party voice and choice • 3. Process pluralism (one size does not fit all) • 4. Put parties in better position than before or in relation to other dispute resolution choices • 5. “Limited remedial imagination” of courts, arbitrations and other binary institutions • 6. Possibility of principle, bargaining and emotion in one room (multiple discourses simultaneously) • 7. Enhance/increase human understanding of the “other” • 8. Justice and Peace together

  10. Our Way Forward • “The skillful management of conflicts [is] among the highest of human skills.” • --- Stuart Hampshire, Justice is Conflict, at 35 • (2000) The Tanner Lectures

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