Rules of Mediation?/Martin Rosenfeld, JD

Posted on September 28, 2019

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Dan Simon wrote a post on mediation for mediate.com (September 2019) entitled “Mediation Approaches: We Don’t Have Science, So Let’s Have principles”. Apparently, Mr. Simon does not see a reason for many ground rules in mediation sessions such as “Listen to each other” or “Don’t interrupt”. Why tell the parties how to conduct their session? What works for Mr. Simon may not work for many mediators. The reason is simple: the parties have lived through the chaos of dissolution. They like to know there will be fair and predictable rules in the mediation. Rules helps give confidence to the parties that they will be heard and respected. It ensures that parties will know what they need to do to get a civil dialogue going. Setting rules likely shows that the mediator has thought much about how the mediation will take place in order to ensure reasonable likelihood of success. In short, if you prefer to mediate without rules, and it works for you, all the power to you. It is at least questionable whether or not parties would willingly enter into such a process. There always has to be one adult in the room. Rules set by the mediator help point out who that person will likely be. Mediate don’t litigate.

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