By Bertha Aniagyei LL.M. ’24
As a person who has worked for more than a decade in the traditional adjudicatory system and witnessed its high and low points, I was convinced that alternative dispute resolution mechanisms, particularly mediation, offered a better means of settling some form of disputes, especially where the parties have an ongoing relationship which would continue in one form or the other even after the resolution of the dispute.
The traditional adjudicatory system is adversarial, and rights based whereas mediation is about facilitating or guiding the parties to work through their disputes, identifying interests, generating options, and arriving at a resolution or agreement which all parties are comfortable with, even if they are not entirely happy with it. Unlike the parties in the court system, parties to a mediation have control over the outcome of their dispute.
I was attracted to the Harvard Mediation Program (HMP) out of curiosity. I wanted to know how much a mediator’s competence in controlling the mediation process could facilitate an agreement or wreck it. How important is a mediator to a successful mediation process and what exactly is a successful mediation? Is mediation only a success when the parties reach an agreement? Is it a success when the parties are offered the opportunity to speak and understand what informs each other’s positions even if they don’t agree?
The HMP training was well coordinated, fun and very educative. We had numerous practice sessions where we acted either as parties or mediators and these were eye opening and enriching experiences. I quickly found out that even in role playing, the manner a person reacts to a dispute is different depending on the role they are playing. When I played the role of a mediator, I was more concerned about the sanctity of the mediation process whereas as a party, I was more concerned about putting my case across, being heard, and being validated.
After the HMP training, I mediated and observed in several cases in Brookline Municipal Court, Somerville District Court, and direct referral cases to HMP. As a mediator, I was concerned with the sanctity of the process and ensuring that parties have faith and trust in the mediation process. This meant that I had to be neutral, actively listen to parties, summarize, and reflect on their positions without prejudice or bias. As an observer, I was interested in doing no harm to the process.
The cardinal principles of facilitative mediation which were self-determination, informed consent and neutrality were foremost in my mind. With these principles, even when it appeared to me that there was an obvious solution to the dispute, I had to remind myself that as a facilitative mediator, it was neither my place nor duty to solve the problem. The closest I could come to resolution was to ask questions, probe gently and using tools like silence and acknowledging the interest of the parties, get them to reflect on their positions, move away from these positions and generate options that could satisfy their interests and lead to a resolution of their dispute.
When an agreement was reached by both parties, I felt satisfied in some instances and uncertain in others. For instance, in one case where the plaintiff appeared to simply want their money, I had an uneasy disquiet as to whether the plaintiff agreed to an option proposed by the defendant which included some admissions on the part of the plaintiff in exchange for the defendant paying the money because they really needed the money or because they genuinely believed that was the best option in the circumstances.
Where parties did not reach an agreement, I was not necessarily disappointed once I felt that the mediation process was not compromised in anyway. There were times when I felt that even though the parties had not reached an agreement, they had gained from mediation in other ways. It could be that mediation had helped them to better understand their own interest rather than position and to understand the other party.
During one mediation, a landlord disclosed that they knew about the financial struggles of the tenant even before renting to them and that accounted for them not demanding security deposits and generally making the terms of the lease less financially burdensome. The tenant who was unaware of this appeared to greatly appreciate this information.
The tenant also shared the various steps they had taken to mitigate the loss of rent by the landlord after moving out and the frustrations they felt at the landlord’s lack of communication and assistance in finding a solution. Although they could not reach an agreement, they both left the process with a deeper appreciation of each other’s humanity and struggles.
My take aways are that no two mediations are the same even if the facts appear to be familiar. This is because of the difference in nature of human beings. Even with the same facts, one party’s core interest may be as far apart as the North pole and Mars from the other party depending on their backgrounds and emotions. Emotions play a big part in the success of a mediation.
I also learned that a competent mediator is crucial to the success of a mediation, but a successful mediation is not necessarily one that reaches agreement. A mediation is successful where the mediator can control the process and provide parties with a convenient environment to hear and be heard, reflect on their positions, realize their interests, and decide what best works for them; even if that is returning the case to the clerk magistrate to hear it in the traditional adjudicatory manner.
I will highly recommend the HMP to all law students and practitioners. The team is great at ensuring that everyone has a great experience and are quick to resolve teething problems within the program. I learnt a lot, I felt that I had done actual and relevant work, and I acquired skills that would forever stay with me and help me in both my professional and personal life.