I am still eagerly awaiting my dear friend Jeff Krivis thoughts, but his question regarding idealism has stuck with me. Was our exuberance and passion for the mediation process simply misguided youth and naivety? Or, were we drawn to the process because it was fundamentally right, more humanistic, and provided citizens with better access to justice? I believe it was the latter. Im the developmental period many issues were soberly debated. Facilitative or evaluative? Mediator styles? Caucus or no? While many pioneers were drawn to a process that long predates lawyer involvement, many pioneers were lawyers and academics who intuitively questioned and debated everything. Interestingly, the idea of abandoning the joint session was never debated because it was the bedrock, the essence of mediation. Of course, exceptions to hosting a joint session were discussed; i.e., the emotions were too, too flammable, this was the second mediation and a JS had already been held, etc. the thought was that the parties and their counsel in conjunction with the mediator would determine if a JS be avoided or occur later in the process. But, the discussions never contemplated a default no JS as a standard practice. Jeffs additional question about whether the idealistic goals of mediation may be met without a JS is a fascinating one. First, I dont think the goals of party access and participation are idealistic. I think these are core values and essential. And, we know the alternative to mediation is trial in which parties are thrust together in a protracted community setting. As I see it, this is not a matter of foisting a process on parties because we believe its good for them. Rather, this is law based paternalism that decides whats best for a client without information and informed consent. I cant wait to learn Jeffs thoughts. He is amazingly wise and thoughtful.
Posted on: Tue, 16 Dec 2014 13:56:56 +0000
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