Restitution and repair: Why these mediators find value in conflict

Take a moment and think of what you feel when you hear the word "conflict." Does your heart beat a little faster? Do you get a queasy feeling in the pit of your stomach?

Mediators might feel this sometimes, but they can't avoid conflict because they work in it every day. They handle divorce proceedings, custody disputes, property damages, and other potentially very messy civil disputes.

The Washington Mediation Association was founded 40 years ago. Its members say they openly embrace conflict as a useful struggle.

"Mediation is a process in which an impartial and neutral third party, agreeable to all the parties, assists the disputants in coming to a resolution that is acceptable to all of them," said Leslie Ann Grove, Executive Director of the Northwest Mediation Center in Spokane and a board member of the Washington Mediation Association.

Mediators are mandated to remain neutral by state law, and Grove said she shreds her notes at the end of a mediation because sessions are confidential.

A mediation session involves two parties sitting down in-person or over Zoom. and that mediator acts as a facilitator, guiding those parties to a mutually agreed upon resolution.

"No judge is going to do it for them, no authority from any outside entity is going to do it for them — they get to do it themselves. So it's both about freedom and about party responsibility," Grove said.

Moreover, courts have limited tools — often just a judgment and transfer of money.

Grove added that mediation taught her about navigating conflict in her own life. Before she started mediating, it was easy for her to get angry and lash out.

"I learned in mediation that conflict actually is often productive, if it is solved in a way that doesn't end up in some sort of violence," she said.

Grove now sees conflict as being useful if it is engaged with in a productive way. Naturally, people get angry during mediation.

"That's okay — mediators are trained to be okay with the rising emotions that happen when you are talking about a dispute," she said. "After all, it is really all about feelings, and the unmet needs of people bring up some very, very strong feelings."

There are many people out there who would still rather have their day in court than go through mediation. That's probably not too surprising, considering many may think, "You've just been requested to sit in a mediation" doesn't have quite the same ring as, "I am suing you for everything you have."

Christine Cimini is a professor at the University of Washington's Law School and oversees the mediation clinic there. She said that mediation entails the opposite of what people in law school often learn.

"Everything they've learned in law school is about two parties — this side versus that side, and we're going to stand in our positions, and we're going to fight for an absolute truth — whatever that truth may be, as if there's one factual truth," Cimini said. "But students come into the clinic, and we do a lot of the underlying pieces of, 'You have to learn how to do reflective listening, you have to learn how to think about taking people off of fixed positions,' and thinking about the expansive ways to resolve problems."

Cimini said that mediation fits into a broader category of alternative dispute resolution frameworks, such as restorative justice or arbitration. However, these practices aren't as common as other methods, Cimini added.

Mediation works well for people who are entering into negotiations in good faith. The practice is useful in the context of ongoing relationships, because it can help repair a relationship while also allowing for restitution of some harm.

But there are certain conflicts for which mediation isn't a good solution, Cimini said.

"If the parties are involved in a domestic violence situation, sexual or physical abuse, or even ongoing, egregious harassment between the parties, it's probably not a good idea to mediate," she said, "because the premise of mediation is that parties come to the table with their ability to articulate their positions, and feel able to agree or disagree."

If there are unequal power dynamics in a relationship, and one party doesn't believe they can safely stand up for themselves, that can be exploited by the other party during mediation.

Someone might also seek a court date instead of mediation if they want to deter some activity or behavior by having a public ruling on their case, or if they want to set a court precedent.