Written by My Collaborative Team President Edward S. Sachs, ACP
Recently I heard an attorney say we were all mediators in a Collaborative team meeting. Are we?
A mediator helps two parties reach a compromise, usually a middle ground between two positions. Mediate.com lists the traits of a good mediator as alertness, patience and tact, credibility, objectivity, adaptability, perseverance, appearance and initiative.
Merriam-Webster lists twelve synonyms for mediator including broker, go-between, interceder, intermediary and middleman. It does not list Collaborator as a synonym.
Webster’s definition of Collaborator is a person who works with others in order to achieve or do something.
That to me is the major difference. A mediator is a middleman. A Collaborator is an active participant working with the team to achieve the client’s goals and needs.
Synonyms for collaborate include concur, cooperate, join, unite and band together.
Seems to me there is a subtle but significant difference between a mediator and a Collaborator. What do you think?
I don’t agree – because it depends on the mediation culture and the mediator’s training and approach. A good family mediator works to facilitate dialogue – much like the neutral coach in CP – and compromise is not the goal. Deep understanding and sharing of needs, concerns, hopes and values is the activity. I think it’s the mediation culture in some communities is more transactional and in those cases – I agree that CP is very different. But in my community, mediation feels worthwhile, sensitive and leaves open the option of building a collaborative team through the mediation process.
I agree. We collaborate but each party has a separate retainer agreement with an attorney. We practice mediation skills but we also advocate appropriately for a client. We may suggest mutually beneficial solutions an attorney’s allegiance is first and foremost to her client.
I agree that there is a significant difference between a mediator and a collaborator. I am a collaborative family law lawyer. Several years ago, I was sitting with a table of mediators at a conference here in Ontario and commented that I still felt an obligation to advocate for my client’s best interests and goals in a collaborative setting. The mediators were universally appalled at the thought that there might be any place for advocacy in such a setting. But I disagree and feel that I can’t totally shed what I perceive to be my duties as a lawyer just because I’m collaborating on reaching an agreement. It’s a conundrum.
Not surprisingly I suppose, I much prefer a collaboration to a mediation. I believe that the best results are achieved when each spouse has independent legal representation throughout the entire process.
To say that a meditator ” helps two parties reach a compromise, usually a middle ground between two positions.” may not ( does not) accurately represent mediation as practiced in an Interest Based Model. Mediation is about neither compromise or middle ground.
We then come to what is the definition of “compromise”? Mediation is about having parties realize options and solutions through a mediator led process that have them put their minds to the question “what else is possible?”.
Mediators engender collaboration in the parties. They do so by exhibiting the skills in their relationship with the other collaborative professionals and even at times with the parties themselves .
Mediation is a skill collaborators use in executing an essential element of our work – helping people in conflict find common ground and a common narrative upon which an ongoing and future relationship can then be built.
A useful model to envision this is Family Systems theory which represents that each member of the family ( read in collaborative meeting) has a role and impact on the dynamics of the conflict conversation. If all we are is middle men / middle persons then a sound delay microphone could accomplish the same purpose as the in person collaboration professional.
I recently heard a Judge in our courts make a statement that is a good ending to this response. In Alberta we have Early Intervention Case Conferences ( EICC) . They are essentially Judge led mediations with a view to rebuilding the collaboration between parents and from that finding agreements without going to court. This justice was told by a devotee of litigation that an EICC would not work between the two parties. Her response was short and to the point. She said ( and I paraphrase) “that depends on who is the EICC Justice”.
And, there endith the sermon.
Best wishes from the frozen North.