My Approach to Mediation
Mediation is still a relatively nascent discipline. While there is general agreement about the potential benefits of mediation and about the centrality of freedom to the process, there is no consensus about how best to proceed. Instead there various approaches to mediation, each of which emphasize different possibilities.
In my view, mediation has two fundamental aspects: interests and arguments. Human beings are purpose-oriented creatures. Often their purposes conflict. Suppose, for example, that there are two divorcing parents who live far apart and they both have as their main goal to have their one child live with them full-time. How are they to resolve this conflict?
In the first instance, mediation works by exploring the individual motivations and circumstances of the conflicting parties in an attempt to uncover common interests, which can then form the basis of an agreement. To return to our example, the parents are likely to have a common interest in the well-being of their child; and this common interest might permit for an agreement to emerge.
At the same time, they might not completely agree upon what is in their child’s interest. As a result, making progress in reaching agreement might require “hammering out” (i.e., arguing about) precisely what is and what is not in the child’s interest. In general, the greater the number and degree of conflicting purposes that exist between parties, the more likely it becomes that agreement will require engaging in argument. Generally speaking, argument will limit what can be a mutual interest.
Let us suppose that one of the parents in the above example is forced to travel extensively for their job and has no relatives in his or her hometown. Suppose also that, in the course of the mediation discussion, both parties come to agree that, as a rule, a child should not be left for several days in the care of non-relatives. Agreement to this rule limits the available options for the parent who travels.
In general, my role is to help the parties to uncover mutual interests and to argue well when this becomes necessary. In this way, I hope to facilitate a “breakthrough” by means of which a productive agreement can be secured. I see argumentation as fundamentally cooperative, since it has as its primary goal the search for truth and justice.
© 2016 Michael D. Kurak