Fighting the decline in dialogue4 May 2021
Last Thursday, Prof. Lela Porter Love of the Benjamin N. Cardozo School of Law gave the Fifth overall and Second Online Wagner Arbitration Lecture live from New York to an international audience logged in from all around the world. As a passionate mediator, she of course talked about mediation and its history, its promotion worldwide as well as its use during the pandemic.
Prof. Love first pointed out that the term “alternative dispute resolution” is no longer entirely accurate, since the alternatives have started becoming more relevant than the classical way of dispute resolution before state courts. Therefore, it becomes increasingly important for lawyers to know the different means of dispute resolution in order to help their client find the best process for their specific problem.
The goals of mediation and its international driving forces
She then proceeded to point out the characteristics of mediation, such as its consensual and private nature. The job of the mediator is to help the parties negotiate well and create an environment that enables them to feel comfortable and to constructively exchange views. That environment must consider the cultural dimension and the different backgrounds of the parties. The goals should always be to generate mutual understanding and movement away from extreme conflicting positions, as well as to conclude a binding agreement in form of a contract. Prof. Love also highlighted that mediation is becoming increasingly popular not only because of the EU directive on mediation and the Singapore Convention on Mediation, but also because of the many new mediators educated and trained by American law schools and the ICC mediation competition in Paris.
The different schools of mediation
Prof. Love furthermore elaborated on the different schools of mediation. The goals of the classical school of mediation are to develop understanding, to solve problems creatively and to reach an agreement between the parties. In contrast, the transformative school focuses on the empowerment of the parties. Through empowerment, the parties are encouraged to articulate their views better and to recognize the other side’s perspective. The agreement will then derive from the mutual understanding between the parties. Lastly, the attorney-brokered deals approach focuses on separate meetings with each of the parties. The parties do not negotiate or meet directly at all. The attorney tries to find a middle ground based on what was said during the separate meetings and proposes a deal to the parties. Prof. Love pointed out that the last approach unfortunately neglects the importance of dialogue and that she sees herself as a follower of the classical school.
Mediation during the pandemic
Regarding the current worldwide pandemic, Prof. Love noted that mediation on Zoom has been huge. While it is nice that the mediators do not have to travel as often anymore, it remains unclear whether the pandemic will change what mediation will look like in the future. She also raised concerns on the issue of equality, since not everyone has equal access to, and knowledge about, the technologies used for online mediation. Moreover, she pointed out that the pandemic has created a political division in our societies and a decline in dialogue. But very importantly according to Prof. Love, mediation as the fortress of dialogue should be used to promote and reanimate dialogue within our societies. She asked everyone who has an interest in mediation to make an effort to revive that dialogue.
The lecture was followed by a Q&A session with questions from the audience, resulting in a vivid exchange of opinions.
About Prof. Love
Prof. Lela Porter Love is a professor of law and director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law (NYC) and Past Chair of the American Bar Association Section of Dispute Resolution. She has served as mediator, arbitrator, and dispute resolution consultant in a wide range of cases and regularly conducts mediation training programs and courses, both domestically and internationally. She has also published a book called “Stories Mediators Tell” about mediation stories from around the world.
About the author
About Wagner Arbitration
The law firm WAGNER Arbitration has its offices in Berlin and specializes in dispute resolution with a focus on arbitration. In addition, the firm offers comprehensive counseling services related to domestic and international business disputes and transactions.