‘Negotesben Vournnh Joly Life of the Mediator: p63 To Be or Not to Be Accountable? Stepben B. Goldberg, Bric D. Green, and : Frank E.A. Sander : Editor's Note: This dialogue is an excerpt from Dispute Resolution, a new book by the three authors, 10 be published by Little, Brown and Co., Boston, ‘in the summer of 1985. “At a recent meeting of the Leawldewit Mediation Society, which is com- ‘posed of both practicing mediators and teachers of mediation,2 professor (P) ‘and a mediator (M) were discussing the day’s program. ‘Ms Boy, I've really had it. 1€ hear one more word about the moral and. spiritual uplif of being a mediator, I'm going to find some other line of Work. As far 25 I'm concemed, it's Just plain hard work, and I wish these Ponineators would begin o acest some ofthe tough issues weal face every day. Pr agree. But you've got to admit that speech by Larry Susskind was really interesting. I've believed fot & tong time that a mediator should be held. accountable for an agreement that he or she mediates, and. Susskind is. ‘emtainly persuasive On that point. As he says, it slmply isn’t enough to ask whether the partes find the agreement to be acceptable: Environmental mediators ought 10 accept responsibility Or ensutiog (thatthe interests of panies net dines involved in degodaions, bbc with a stake in the oucome, ae adequately represented and pro- tected (2) that agfeements are as fle and stable as possible, and (3) that agreements reached ae imerpreed 1 iatened by the consi ‘igrablarge and set consiuctive precedents. Otherwise, mediation can be used asa device by which thie stronger party takes advantage of the’ weaker, or they both tke advantage of ‘others (Susskind, 1961), My only disagreement with Susskind is thar he limits his argument to the mediation of environmental disputes while I ‘would extend it to mediation in other contexts. ‘Hephen B. Goldberg, Professor of Law at Northwesier University School of Law, Chicato, TL 6, the author of several fect aries On grievance mediation. Erle Green & Aso" Gate Professor at Boston University School of Law, Boston, Mast. 2215 and haa pubianed ‘work on a varety of dispure resolution concepts, particulary the Mini Tia), Prank B.A. ‘Sander i Busey Profesor of Law at fatvard Law School, Cambridge, Mass. 02138 and isthe Director of the Dispute Resolution Program of the Program on Neqatation at Harvard Law ‘School. Profesor Sander has writen extensively ia the field of atemauve dspute resolution tnd developed the concept of the "Mull Door Courthouse~ SS ‘Mi 1 couldn't disagree more. 1 chought thar Josh Seulberg clearly: demon: strated the flaws in Susskind’s thesis. As Stulberg noted, determining whether an agreement is “fa” and optimal even as between the parties a the bargaining table can be an awesome task. Extending that Inquiry to ‘question whether the agreement Is fal to persons not in the negotiations, about whose desires and interests the mediator may know litle ot hothing, only compounds this difficulty. Furthermore, as Stulberg asks, ‘who authorized the mediator to decide the faimess of an agreement that is acceptable to the parties (Stulberg, 1981)? ‘There's also one potne hac Stuiberg only hints at that 1 think is crucial, Whatever the theoretical appeal of Susskind’ thesis, I Just Won't ‘work as a practical matter, You've done some mediation, and you know 5 well as I do that the objective of a mediator is to help parties who have been unable 10 reach agreement on their own, They don't go to a mediator because they Want to but because they bave 10....they're stuck, I don't know about you but I find it difficult enough to bring partes like that to some agreement they can both live wit. Ifa mediator has to not only secure an agreement but also determine whether that agreement is “fair,” both between the negotiating parties and others, the [practical effect is going to be that mediation will be a far less effective tool for reaching agreement. It's like the baseball player who tres to hit a home run every time: I's pretty impressive when that happens, but there are a lot of strikeouts along the way. Pr [agree with everything you say. But what's the alternative? A mediator ‘cannot escape ethical responsibility for helping the parties reach fale agreements by copping out on the ground that the tak is difficult. Take a divorce situation, for example. Assume chat the parties have grossly unequal bargaining power and that they are about to ask the mediator to bless an agreement that Is blatantly unfair to absent partes lke the chil- dren. How can the mediator escape the responsibility for such an unfale agreement simply because the task is difficult? Fitst of al, Yim not just saying that the task i difficult forthe mediator, but that imposing such additional responsibilty may frustrate the central goal Of both negotiation and mediation, which is to reach an agreement. Secondly, you assume the very issue we're discussing. Why do you assume that I he parties reach an agreement the mediator should be regarded as having “blessed! that agreement or as responsible for what's ine Py Speaking of assuming away the issue, your statement that “he: central {goal of both negotiation and mediation is} to reach an agreement” suikes ‘me as 2 doozy. My point is precisely that the goal of the mediator stiould” ‘not be to get an agreement at any price, because other considera- tions—such a8 those mentioned by Susskind~should also come into Y. ‘As for taking me to task about the mediator “blessing” the agree- ment, how can that inference be avolded? The mediator 45 Involved in the negotiations, and she world-at-layge 4s going to hold the- mediator responsible-for-that agreement. Take the example I. was just talking about—an unfair divorce agreement. Suppose the wife takes that agree- ‘ment to her lawyer, who tells her that she has been grossly taken advan- PB __— tage of. Aren't the lawyer and everybody else who secs that agreement going to say, "How on earth did that mediator let you agree to something Uke that?” Well, anybody who says that just doesn’t understand mediation. The point I'm making is that the mediator has to spend time about ‘whether the agreement is going to be fair or unfalt, all to often there ‘won't be any agreement to worry about. Then your divorcing parties will be right back in court, which is what they went 10 mediation to avoid. ft ‘ates reminds me ofthe story (Colosi, 1984) about Kissinger managing to get the ion and the lamb to le down peacefully together—at least during the daytime while they were both being carefully watched. But each ‘morning, Kissinger had to ceplace the missing lamb. 1 guess the moral is ‘that mediators shouldn't try to take on too much. In an ideal world 1 would agree with you. But we are living in an imper fect world. What's the alternative? Maybe parties won't be able 10 come to-an agreement. Sometimes that's for good reason because no fair agree ‘ment could be seached, And no agreement in that kind of setting is better than an unfair agreement. Jn terms of the alternatives, one obvious alternative is to have the agree ‘ment reviewed by an institution or person other than the mediator. That ‘way you avoid the confusion of roles and let each institution play the role that it Is best sulted to play. ‘Well, that sounds good but I'm afraid it’s just wishful thinking, Again in areas | know something about, such 2s divorce mediation, the courts are simply not equipped to provide a useful oversighs sole. They jus eubbee- stamp the agreements the parties arrive at and thus reduce their burgeoning caseloads. ‘Maybe there isn’t an allor-nothing answer to this question. There may be some areas where there really is no other effective agency, and ‘mediator concer for more than just reaching an agreement is the least bad solution, And then there are other areas where elther the situation is ‘ot likely to be as extreme a5 the one I have sketched, because the parties, are relatively sophisticated or have attorneys, or else there is a competent and capable alternative 10 having the mediator assume all those tasks. | ‘would certainly agree with you that that solution would be preferable i it could be made effective. You've twice asked, "What's the alternative?” I think one alternative is, either judicial or administrative review. Now you say, well, they just can’t do it. But what you're really saying is they haven't done it. You're proposing what I regard a5 a fundamental shift in the role of mediator. ‘nd I'm saying to you if you want to make a fundamental shify, let's doit by getting the courts to review these agreements more carefully: Rather than muddy che medltor’s institutional responsibilty and role, have the courts do what is thelr proper and appropriate roe. 1 think i's more complicated than that, Fist of all, as 1 have sald several times, mediators have been doing some of these tasks~perhaps you ‘would say not too effectively and sometimes ata cost of not getting an agreement—but sill they have been doing them. And courts, by and large, have not been doing them, It would take a major reallocation of the kind you well describe to accomplish that shift in responsibility,PB But I'm not sure it would be desirable even if that could be achieved. ‘There is the question of economy and efficiency. The mediator now learns a great deal about the case and about the impact of a proposed agreement on present parties and absent partes. A judge would have to start all over again to address those issues. Yes, | agree that it's theoretically more efficient to have the mediator both ct 25 4 mediator and as a quastjudge passing upon fairness. But, once you add this additional task to the mediator’s central goal of helping the pares reach agreement, then you run the risk of losing the genius of ‘mediatiod itself, and winding up with no agreement. Inthe parties’ view, the mediator's value lies in commitment to settlement and not to a partic: ular interest. Once a party perceives the mediator to be secking to further a particular interest, whether present at the bargaining table oF not, the ‘mediator becomes just another negotiator. At that point, the mediator is part of the problem, not part of the solution (Ross, 1984). You know, I think this whole question is rather similar to the question ‘whether one person can serve as both mediator and arbitrator in the same dispute. There, t00, we are talking about commingling different roles in cone person. And while I generally agree with you that that's not desirable, my view is that, as with the answer to most questions, “it depends.” It depends on the nature of the case, on the alternatives that are available and some of the other factors we have already mentioned. Perhaps the question is not as simple as elther of us thinks. ‘When you say that it depends on the “nature of the case,” what are you talking about? Well, the greater the power disparity between the parties, the more important itis thatthe mediator be held responsible for the fsleness of the agreement. { know that | just couldn't sign off on an agreement that was ‘grossly unfair to both a divorcing wife and her absent and unrepresented children, must admit that I've never been in that situation, | work almost exclu sively in the labor-management field. There we don’t usually see gross power disparities, and when we do, we figure that's what Congress ‘meant by establishing a system of free collective bargaining. It's up to the ‘workers (0 protect themselves by organizing Into strong unions, and if they can't do it t's not the mediator's responsibility to protect them. 11 appears to me that we are each influenced by the fields in which we ‘work. When I mediate, i's primarily in family situations, where iis ally ‘common to find that one of the parties has’ considerable power advan- tage over the other. And there's certainly no congressional policy that says that the weaker spouse must suffer the consequences of his or her weakness [think we've found something we can agree on. Lim willing toaccept the ‘notion that if there is a teuly great power disparity between the parties, at leas outside the labor contest, the mediator as some responsibilty for the content of an that he or she is so un i oflends the mediators conscience, he or she probaly should wie draw rather than be associated with it When you speak of unfairness, are you looking only to the fairness of the ‘ement as between the negotiating parties or are you also willing tq ™ examine the faimess of the agreement 2s i affects parties not represented {nthe mediation—the children, for example?! ‘M: 1 just don’t know. I suppose that I might look out for the children, but that’s only because if 1 didn't worry about them and they didn’t have separate legal representation, is unlikely that their lntercats Would be ‘considered by anyone else. On the other hand, who am I to think that | know more about the best interests of the children than thele parenis? Furthermore, whatever I might do about the interests of unrepresented childcen,c] know that I would not object to an agreement that was satis- {2ctory to the parties simply because I thought it might be unfale to some undefined absent thied party. Pr Let me push you a litle on that. Suppose that an employer and an all White union agree, ina dispute that you are mediating, that whites will be siven preference over blacks in hiring. What would you do? Mi Fis of all,1'd point out to them that the clause was unlawful and could cause both of them considerable legal trouble. If they sull wanted to Include it, I'm not sure what 1 would do. I might decide that the courts ‘would strike it down 50 I needn't worry; or, I might decide that I just ‘couldn't be associated with such an agreement and step out of the nego tations. | just don’t know. It does seem 10 me, however, that i | were 0 step out, it would be because of my personal values, not because I felt that as a' mediator, I had an ethical obligation to do so. Pr_ That strikes me asthe kind of fine academic distinction that you generally accuse me of making. We both seem to agree that itis probably inappro- priate for a mediator to be a party to an agreement that discriminates lunfalty against absent panties. If you're happler calling that part of a ‘mediator's personal value system, that’s fine with me. ‘Ms. Well, I'm sure there’s more to be said on this subject, but it's time for us to go back for the next session. Maybe after that we can get a mediator (0 help us negotiate a resolution to our dispute. NoTEs 1. As Gerald W. Cormick has poited out (Cormick, 1982), the ethical responsibilty of 2 ‘mediator varies with the sophisican ofthe duputais, the extent of bagalnig equal, and the impact of setlement on absent pares. REFERENCES CColoel, 2. Foreword 1 Abca! sues i Dispute Resolution. Wasbngton:Socety of Protes ‘sonal la Dispute Resolution (1964). Cormick, G.W. “Imerveton and sefdterminatoa In envionment dlpules: & medator's [pespecive" sole The Conservation Foundatlon, Washigyon, D.C), Wiser 1982, p-L ‘Rots, JH. "Should the Mediatr alse Publle loeret Considertions Daring Negotiations ‘Eibical tues im Dispute Resoluion, Washington: Socety of Profesional Ia Dispute Rp lon (1984):50-51 ‘Seulberg, J. "The Theory and Prac of Mediation: A Reply to Profesor Susskind.” Vermont “Lae feviow 6 (188165. Surskind, LE “Environmental Mediation and the Accouniabity Problem.” Vermont Law Review 6 (i981) j |