LinkedIn Artikel - Malpractice within Mediation

Misunderstandings which ruin the reputation of professional mediators

Lawyers often offer their services as mediators, who unfortunately give ‘inadequate’ mediation or conflict-solving and give the concept of mediation a bad name thus creating many misconceptions among its clients:

Juridical procedures result too often in a polarizing parties in the name of the law, used and abused by lawyers due to the formalistic nature of legislation,

putting often more oil on the fire by focusing on the differences and putting these differences under a magnifier in order to blame the other; unfortunately, they are not bringing conflicting parties together but rather pushing them further apart, even to extremes.

After the legal procedure, there may perhaps be a winner, but frustrated feelings remain, to say the least; the real core or motive of the conflict issue has never been addressed: the feelings or thoughts of both parties even less.

Both parties spend an enormous amount of money, energy, and time in order to obtain a certain right or amount of monetary compensations through lengthy and thus costly court sessions. The only biggest winner is the lawyer, cutting human relations or communication coldly with an iron sword and earning his/her fee for every extra legal action. Legal procedures may be the only resort in certain cases where it concerns a real criminal act.
  But in the case of e.g. family or business conflicts, mediation should be first attempted to reach a more effective solution.

Mediation or conflict resolution tries to bring the parties together.
It is not a legal process but rather a communicative process;

  It requires special techniques, "Fingerspitzengefuehl" and skills to let communication flow again and create good will. It requires asking the right questions; going from points of view back to motives. The art is to create an atmosphere where people do not mind going deeper into the issues and listen to eachother, finding understanding and enabling a solution or even new kind of revived cooperation.

My experience is that in such an atmosphere people can become astoundingly creative; finding a new way of working together.

There is a trend that many lawyers sell themselves as mediators as well; sitting next to the parties without going deeper into the ideas and interpretations of people: caught in their trained legal thinking-frame.

Most of these lawyers (with some exceptions) have not concluded a proper mediation training or ignore the human side of a conflict. Not understanding that just letting people talk is not enough; missing the right moments to address the feelings of parties, making an open conversation possible where vulnerability is never threatening. Quite the opposite of what a juridical procedure entails!

Unfortunately, this kind of mediators give the profession a bad name: parties are left behind desillusioned often even frustrated because the "lawyer-mediator" tries to impose agreements without parties having the chance to fully express themselves. Sometimes, such a mediator would even choose sides, in case of an employment conflict, subdued to the authority of the powerful employer (i.e. paying client).

There are certainly good mediators among some lawyers, but be careful choosing one with empathy and a more psychological approach; who knows the right techniques and strives towards a certain balance, harmony instead of polarization and animosity between the individuals. Somebody who takes both parties equally serious.

 This way, true and silled mediation/conflict resolution is the better future.

A future which would develop an empathic society, putting importance on the dignity, authority and responsability of each person.


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