Mediation Remains Elusive in Public Discourse Despite Its Ubiquity

By MARIA R. VOLPENovember 9 ,2012 | Print

Confused by ADR

The issue: What’s the difference between mediators and arbitrators?

Who’s perplexed? Newspapers. or maybe just headline writers. or maybe it’s the dictionary’s fault.

Does this matter? Yes. Mediation is used everywhere. It’s standard practice for disputes. It needs common understanding.

On June 30, one of the world’s most esteemed newspapers, the New York Times, published a short article about an arbitrator’s decision that blocked Mayor Michael Bloomberg’s plans to reconfigure failing schools in New York City.

The article’s headline, however, stated, “Mediator Halts City’s Plan to Overhaul 24 Schools.”

For mediators on the NYC-DR listserv, this inaccurate use of conflict resolution terminology immediately ignited an animated and robust online discussion.

Among the most vigorous exchanges were those questioning whose responsibility it is to educate the public about conflict resolution processes, and the role of dictionaries in defining anything.

One listserv contributor noted that dictionaries state mediation and arbitration are synonyms and interchangeable. “We should take a step back before hauling the Times into language court,” the listserv member wrote. “It might say its use of ‘mediator’ is not misleading at all. It would be right. … We could prefer that the Times use the word as we do. But we can’t fairly accuse it of misleading when its usage is linguistically correct, even if it doesn’t align with our preference.”

Another writer responded, “I don’t think this is an issue of a dictionary definition but the need as an ADR community to initiate the most important newspaper in this country (maybe the world) to take the lead in recognizing the true difference between arbitration and mediation.”

Another contributor, veteran New York Police Department detective and mediator Jeff Thompson, took to his blog to assess some comments, and wrote that it is as “if saying rain and hail are the same. According to Dictionarycom’s thesaurus[,] they are synonyms so is it permitted to interchange them? It lists under synonyms for rain the following words (but not limited to): rainstorm, monsoon, sleet, heavy dew, hail, flurry, pouring, sprinkling and cloudburst.Would anyone here freely interchange the two—specifically in an academic paper or article?” See Thompson’s blog post at http://www.enjoymediation.com
/2012/07/nyt-mediation-arbit
ration-are-same.html
.

Detailed information was provided about how to respond to the mismatch between article and headline. Participants shared their knowledge about newspaper operations, including the fact that writers of articles usually do not write the headlines.

Listserv members shared the many ways to contact a newspaper to correct a headline or article, including calling the newspaper, writing a formal Letter to the Editor, or writing an op-ed article or a substantive piece on mediation.

It was noted that the New York Times receives more than 1,200 unsolicited op-edsubmissions a week. See former Times editor David Shipley’s “And Now a Word from Op-Ed” (Feb. 1, 2004)(available at www.nytimes.com/2004/02
/01/opinion/01SHIP.html
). This means that there is virtually no chance of being published, as even the newspaper’s commissioned pieces may not be printed.

After numerous requests sent to the Times from mediators that the headline be corrected, it remains unchanged. You can see the original article, mistake intact, at Al Baker, “Mediator Halts City’s Plan to Overhaul 24 Schools,” N.Y. Times (June 30, 2012)(available at http://bit.ly/SnO0Fr or using the search function at nytimes.com).

In response to the various appeals for an op-ed piece, this author prepared the following opinion piece for the Times. As noted by one of the listserv members, “While an Op-Ed might be nice, we would be deluding ourselves to think a piece on this issue is going to make it onto the Op-Ed page of the NY Times. Not a chance.” It was not published.

But when the Op-Ed article was sent to the listserv, it too became the object of scrutiny as listserv members questioned whether arbitration is the antithesis of mediation. People wondered aloud, online, about the depth of detail that members of the profession should provide the public on the distinctions between mediation and arbitration.

Here is the submitted article, with some slight formatting and transition changes made for Alternatives:

‘DEMYSTIFYING MEDIATION: OLD AS HUMANKIND, YET CONSTANTLY MISUNDERSTOOD’

“Imagine an intervention process that is as old as civilization, but still widely misunderstood. That is the current paradox facing mediation, one of the fastest-growing conflict resolution processes around the world.

“Today, it is common to hear that mediation has been used in resolving situations from the most minor of conflicts occurring between individuals to the most intractable international conflicts. In some jurisdictions, disputing parties are mandated to try mediation. Thousands of people have been trained as mediators in a variety of contexts, universities and law schools have been introducing mediation-related coursework, and even elementary age children have been trained to be peer mediators in their schools.

“Yet for a process that is rapidly gaining visibility and acceptance across the globe, mediation remains one of the most elusive modern-day processes.

“If mediation has been around as long as civilization, why is it still widely misconstrued? For starters, it is often confused with meditation, perhaps understandable due to the similar spelling.

“But it is also confused with other conflict resolution processes, particularly the more entrenched and better understood process commonly used in labor disputes known as arbitration.

“Arbitration is a process where the third party makes a decision for the disputing parties, similar to the more formal legal context in the courts where a judge makes a decision in an adjudicatory process. The confusion between these two processes is so rampant that it is not uncommon to see the terms used interchangeably.

“Arbitration, however, is the antithesis of mediation. In mediation, the parties are encouraged and assisted to understand each other’s perspectives and explore agreeable solutions to their conflict. If they don’t feel that the process is working for them, they can end it. The parties have not signed on to a process, which leaves the ultimate decision in someone else’s hands as in arbitration.

“Historically, mediators have been trusted individuals, like elders, the clergy or other ‘go to’” individuals who have often been able to step in the middle of disputing parties because they were respected, or had an ability to be good listeners and problem-solvers.

“But since the 1970s, the mediation landscape has been changing very rapidly in all parts of the world. Mediation is a process that resonates with globalization efforts seeking to engage people to resolve their own problems, whether in their personal lives or in addressing the intensifying calls for democratic processes. While there are many different mediation styles and ways in which mediation is conducted, mediation is universally recognized to be a process where the parties are shaping their own outcomes with help from a third party.

“How mediators become involved in conflict situations differs markedly. Sometimes they have been invited or asked, other times they have been assigned by a court or by political officials. Increasingly, its use is expanding in new contexts like the workplace where employers may request that employees work through their differences with a mediator, schools where peer mediators help fellow students restore peace among them, and the corporate world where businesses choose to manage their differences more informally with the assistance of a mediator.

“Why mediation is one of the best-kept secrets despite its expansion is a result of the very nature of the process. As it is currently practiced in most contexts, central to mediators’ work is confidentiality. Mediators rely on it to gain the parties’ trust, provide a safe space for parties to share concerns, consider options, clarify understandings and reach agreements.

“It is difficult to actually see how mediation works since television shows, movies or public forums to observe like the courts are virtually nonexistent. It is not surprising that the work of mediators behind closed doors is sometimes compared to ‘a gated community.’ From the outside, it is impossible to see what goes on inside.

“Despite the confidentiality of the process needed to protect the often fragile communications between and among individuals who do not trust each other, there are thousands of success stories where individuals and groups who have benefited from mediation could share with the public. Yet, few have been forthcoming. They, too, value the privacy afforded by the process.

“There is a silver lining in all of the educational efforts underway, from elementary to graduate and law schools. With so many students learning about mediation-related skills, their toolbox will include abilities to raise awareness about a conflict resolution process that enables disputing parties to figure out their own constructive and creative solutions.

“For sure, mediation is not a panacea. Not all conflicts can or should be resolved informally. But it is also important for the public to know what it is and is not, and for the media and others to accurately distinguish it from another conflict resolution process known as arbitration.

“Quite simply, what mediators do is get in the middle to help disputing parties to have a difficult conversation and to move on.”

* * *

While the listserv buzzed about “the deeper meaning” when this proposed article was posted and discussed, it would not be the last time last summer that mediation was confused with arbitration.

A July 25 headline appeared in the Boston Globe, “Mediator Finds for Fired Hub Officer.” And, like the N.Y Times article, the story was about an arbitrator. No mediation involved.

One of the Boston-area listserv members sent a letter to the Globe editor and reporter pointing out the error, and even included a copy of this author’s Op-Ed piece that had been sent to the Times. As of this writing last month, one could still see the contradictory Globe headline and lead paragraph at http://bo.st/PQFomG.

Like the N.Y Times, as of press time, the Globe had not corrected the headline.

List-Serving the ADR Community

The NYC-DR listserv discussed in the accompanying article was launched on Sept. 27, 2001, in the wake of the terrorist attacks that leveled the World Trade Center towers and sent commercial planes into the Pentagon and a field near Shanksville, Pa., killing nearly 3,000 people.

The listserv was started to provide an outlet for conflict resolution practitioners to discuss the profession’s response. It facilitates information exchange and discussion among those interested in dispute and conflict resolution, peacemaking, dialogue, restorative justice, violence prevention, social justice and related fields.

The listserv, with over 2,300 subscribers in more than 20 countries, is hosted by the City University of New York’s Dispute Resolution Consortium at John Jay College of Criminal Justice, in New York City. Article author Maria Volpe, a John Jay professor, is the list administrator.

Information about the listserv, is at http://johnjay.jjay.
cuny.edu/dispute/
.

The author is Professor of Sociology at John Jay College of Criminal Justice–City University of New York where she also is the Director of the Dispute Resolution Program and Director of the City University of New York’s Dispute Resolution Consortium. She holds a Ph.D. from New York University.

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