Vigorous non-dissent

[gurdonark]

It's always been my theory that one great, and perhaps the best, way to search out truth is by adversarial comparison of opposing theories on either side of a question, resulting in the fabled "competition in the free marketplace of ideas". This is the way our legal system is supposed to work, and to a great extent the way that our political system is supposed to work. In practice, both systems fall short, albeit, in line with the old joke about democracy, they fall less short than many other systems.

But lately I notice that outside the stylized battlegrounds of lawsuits and party politics, so many arguments start with such radically different assumptions on the part of the parties to the dispute that it's very difficult to say that the adversary process advances the ball at all.
I personally learn a great deal through argument and the comparison of opinion. But on-line life in particular seems to present endless paradigms in which the parties to the discussion have such different analytical constructs as to make "debate" virtually meaningless.

I used to have a lot of skepticism for the "mediation" model, in which the parties try to
avoid resolving their disputes with "winners" and "losers", and instead seek a peaceful third way. In lawsuits, particularly in family law, mediation can be a good tool, but I did not see how it could have much application outside the kind of "jousting by design" inherent in the legal process, where the parties can "value" a suit and the discussion is largely "how much" rather than "is it possible?". Outside litigation, where values of positions are less definable, I could not see that consensus could be reached often enough to justify the effort at non-determinative resolutions of issues.

Now, though, I'm beginning to wonder if we don't need a bit more mediation and a bit less dispute. It's not that I am particularly pollyannaish that "if we only talk, it will all be all right".
It's just that when mindsets are so different, as seems to happen so often nowadays,
I'm not sure that any agreement can be reached on anything as to which opinions are strong without strong efforts to mediate common ways of thinking about issues. In particular, I see too many situations in which people who basically think the same lack the common language to express their thoughts. In the Sermon on the Mount, the phrase was to the effect that peacemakers are blessed, because they will be called the children of God. But I'd say instead that peacemakers are perhaps a blessing, because sometimes the fog seems too deep for anything but a mediated solution to solve

Comments

[twiceuponatime.livejournal.com]

After a "family meeting" last night (siblings and mother), I am wondering if you would give your perspective on mediation. I know I could get a dictionary.com definition, yet I would like to know, from your experience (totally subjective, if you would), expand your thoughts on the mediation process (i.e. can it accomplish much/anything) and on the role of the mediator (i.e. what would he hope to accomplish).

Maybe my questions don't need answering right now, and its okay with me if you don't have inclination to expand here.

I just (again, after some interesting aspects of 'said meeting,' last night), am tending to throw out any of my preconceived notions and listen afresh.

So IF you are inclined to expound, I am a clean slate (ideally, that is. I don't suppose I can set aside all my own beliefs and presumptions, but I am willing to suspend those until I hear more :)).

[gurdonark.livejournal.com]

A mediation with a mediator is a situation in which the parties agree to mutually discuss their disagreements with a third party with no ability whatsoever to "decide" who is right or wrong. It is non-binding, usually voluntary, and aims at working to "cut through" the communications obstacles which divide people who had legitimate disagreements. A mediator is sometimes a retired judge, and sometimes an attorney, and sometimes a non-attorney with specialized training. In every case, though, the mediator is there to listen and to find ways to resolve disputes by "cutting to the chase" of things which people cannot otherwise "cut through the chase" to work out. A mediator is not on any "side", other than the side of facilitating communication.

In the post, of course, I use mediation as a placeholder term for any effort to seek consensus rather than a "winner" to resolve a problem. But as to "true" mediation, I am much more favorably disposed than once upon a time. I used to think that mediation serves a purpose only in certain narrow litigation contexts, but now I see that the problem of communication bleeds into so many
different areas. In essence, all a formal mediation involves is a trained neutral, facilitating discussion between opposing parties.

I think that we all bring so much baggage and emotion to the table that it is very difficult to resolve family issues without getting lost in the baggage. A mediation is one device to try to avoid the hassle of legal expense or lifelong hatred. Sometimes the parties at a mediation each have their own lawyer; sometimes nobody has a lawyer. There is no one "cookie cutter".

I used to imagine that absent a legal structure, a mediation was too loose to succeed. But now I wonder if parties can't define their own structure and goals, and with the right intermediary make progress even on things a law can't enforce.

[http://users.livejournal.com/_riomaggiore/]

as one who seeks to be a mediator, i agree with your comments wholeheartedly. there are no winners to be made as there are no losers. resolution is a matter of compromise. no party gets all they would like as the other does not lose all that they have. i suppose that is why it is called compromise.
regarding the things "law" can enforce, i find that there are very few. judgment can be made. awards can be granted. however, the press for production of "payment" (not just money or justice) is a whole other ball game. one is rarely forced to do what they aren't willing to do.
a process of mediation--education--of what may be good and just for all parties, aside of the threat of law, seems to work best with the understanding that compromise is not about winning or losing.
thus my retirement from family law in an adversarial nature. sometimes i even question the process of "forced" mediation which the courts strongly favor.
thanks for your perceptive thoughts to this comment and for your post.

[gurdonark.livejournal.com]

Yes, you make a very good point. "Mediation" in the litigation system is a very useful thing, but the "forced" nature of it can render it just another step, rather than a way to solve a problem. I like our legal system tolerably well, but so many disputes should be solved before they ever get there. It's not just about resolving dollars and cents and custody and the like, though--I now wonder if mediation couldn't solve a world of problems.