What is the difference between the role of a mediator and the role of a lawyer? Here are some thoughts:
The mediator is there as a guide, not a director.
Participating in mediation is voluntary – it takes two to tango. If one person cannot or will not participate for any reason, there is no mediation – and therefore, no role for the mediator. The mediator’s job is to provide structure to the conversations, and to guide the process, but she doesn’t have a stake in the outcome.
The mediator is supporting the clients’ right to self-determination.
One of the biggest differences between mediation and litigation is that in mediation, it is the people themselves who are making the decisions, not the judge. This is self-determination because they are in control of both the substance (what they will decide) and the process (when and how things will happen). The mediator’s job is to support that.
The mediator is not an advocate.
A lawyer’s job is to be persuasive – to convince the decider (judge, jury, etc.) that her client is right, or innocent and the other side is wrong or is guilty. But the mediator isn’t trying to convince anyone of anything (except to stay focused on coming to an agreement.)
The mediator is not a fact-finder.
When we have spats with our partners or friends, the focus of a conflict may be on what was said or done in the past. (“You did, too!” “I did not!” etc.). That can also be very important in court – the trial is often about what happened, and who did what. But it is not the mediator’s job to make that kind of determination.
The mediator is future-focused.
The mediator should keep the conversation focused on reaching an agreement. That doesn’t mean that the conversation is always linear — sometimes we have to talk about things or patterns that happened in the past to decide how to solve problems. But the agreement is always focused on how people will conduct themselves in the future – (e.g. “the children will be with Chris on Monday and Tuesday nights, and with Sam on Wednesday and Thursday nights…”)
The mediator has to hold the possibility that both people’s points of view could be right.
I find this to be one of the most fascinating and challenging aspects of being a mediator. If Chris is arguing that the sky is blue, and Sam is arguing that the sky is gray, I have to hold the possibility that both things could be true. Perhaps the sky really DOES look blue to Chris and it looks gray to Sam.
Or perhaps it is blue-gray. We’re all taught that there can only be one truth, but why?? The point is that Chris experienced the sky as looking blue, and that’s what matters. And Sam experienced the sky as looking gray, and that’s what matters, too.
The mediator is helping each party clarify their own point of view.
When I was doing criminal defense for kids, I once had a client who was doing time for a fight she’d had. “What was the fight about?” I asked. Her answer: “Miss Joy, we’ve been fighting so long, I don’t even remember.” This was an extreme example (after all, she was locked up!).
But for any of us, it can be easy to get so caught up in the conflict that you hold your ground even when you are past the point of really caring about it. Part of the mediator’s job is going underneath to help each person clarify not only what they are saying, but why that thing is important.
The mediator is helping each party understand the other’s point of view.
This is, perhaps, the most important part of mediation. And it’s why I work with both sides together – to help them each stand in the other person’s shoes for a bit. So while I’m working with Sam to understand their position, Chris is watching and understanding a little better, too.
The mediator is helping both parties understand their circumstances.
One of the questions I’m always asking is whether people have the information they need to make informed decisions. (In a divorce, this includes honest financial disclosure, but may involve other things, too.) Understanding – and being honest about – your circumstances and your options is key to making the best and most lasting agreements you can.
The mediator can provide information but cannot provide legal advice.
When I’m mediating, I often tell people what the relevant statute says, or what other clients have done in a similar situation. That is legal information. I can also do some reality testing with both of them (“What will this look like in 5 years? What if this or that happens?”) But I can’t say, “Oh that’s a good deal, you should take it!!”
This seems like a long list. Do you have anything else to add (or subtract)? As always, I welcome your thoughts!