False Mediation

Can mediation be falsifiable?

Is there a right mediation practice? Need there be transformation? Or facilitation? Or is it "Just settle, baby?"

Who is to say that a mediator is truly practicing true or false mediation?

I attended a conference regarding mediation in personal injury cases, where insurance company defendants were discussing the relative merits of mediation versus showing willingness to go to trial. I was appalled to hear a panel member, a sitting judge, describe what he referred to as the mediation that he practices in his cases. He described his mediation by invoking the law of the jungle, predators and predation, excoriating "weak" plaintiffs and coercing them to settle by telling them in chambers that the strong defendant would devour them at trial. He seemed impressed by his analogy. I remember talking to another panel member, a retired judge, after the conference, shaking our heads as we agreed that if this can pass for mediation, then there is no useful meaning to the practice.

I think that national, state and bar accreditation of mediators is important and will eventually arrive as more courts look to mediation to relieve docket congestion. But even before we embark on a licensing initiative, we need to be able to discriminate between mediation and false mediation. Mediation is falsifiable if it parades as something other than facilitating party agreement and self-determination. To be hesitant to call out false mediation is to betray an inability to even consider taking the path to any form of mediation accreditation.