Common Usage

I have good news and bad news. The good news is that mediation has become common in its usage. The bad news is that, alas, mediation has become common in its usage. And the question I pose is, does mediation retain its special power as it becomes more common?

Webster defines "common" as: "occurring or appearing frequently"; "familiar" and "widespread". In that sense, the practice of mediation has already gained acceptance beyond the aspirations of its of its early practitioners. Few lawyers remain uncertain of at least the basic concepts of mediation, and most litigators are likely to have participated in at least some type of proceeding called a mediation. It has even become possible to write an article on mediation without first defining the process. The basic understanding is assumed. It has become common knowledge.

Webster further defines "common" as: "characterized by a lack of special status" and "coarse".

In its not so distant past, mediation had yet to attain common usage. Its practitioners were few and mostly outside the mainstream of American jurisprudence. Its proponents were often suspected of lacking the courage to litigate, and those who suggested it to be signaling weakness. It was assumed to be inconsistent with law firm economics. The theory of mediation was explained using words like "transformative". It spoke of allowing for the venting of feelings and exploration of interests beyond one’s own. It proposed that there were things to be exercised beyond power. It asked us to believe in magical pies that could be eaten without being consumed. It suggested that there could be winners without losers. Its concepts were strange and unwanted. It was heresy.

It was also a notion whose time had come. It worked on many levels. It proved effective at settling cases and removing them from crowded court dockets. It offered a good marketing tool for law firms seeking to attract clients demanding quicker, more certain and less costly results. It put forth the prospect of a process that might leave some gain for the parties net of the cost of the battle.

And so mediation began to achieve acceptance within the traditional practice of law. And though it became less strange, and more common, its power to achieve results continued to derive largely from what had earlier been perceived as its heresies. Sometimes it made people feel good. Parties exercised control where before they had been only excluded. The aggrieved felt heard; the accused defended. The opportunity to make choices replaced the threat of having results imposed. Participants were made decisive by knowledge rather than fearful by ignorance, and felt satisfied in their decisions. And despite our misgivings and denials, we were, however slightly or infrequently, transformed by the effort. And lo and behold, sometimes the pie did grow. And much of the success of mediation came exactly from the fact that it was special, and beyond ordinary, and not merely common.

Is there a price that we pay for that common usage? Has familiarity bred inattention? Does the process have the same power if it becomes passé? Do we, in our familiarity with the process, start to skip the details? Do we forget to look carefully at what we do, and so do less? Recognizing what is supposed to happen, do we forget to explore what can happen? Are we more appreciative of things that are special, and do we try harder when we are less nonchalant?

Webster offers as synonyms for common both "popular" and "vulgar". I take that as a warning. And though I enjoy being welcome to conduct mediations in the best conference and hearing rooms, I look too for the chances to caucus in gardens and on porches. After all, Jimmy Carter took Menachem Begin and Anwar Sadat to Camp David to make peace. And though we most often gather on opposing sides of tables spread with documents and notepads, I frequently set that table with linens and flatware and serve breakfast. It is said that Golda Meir would convene her Cabinet’s most difficult deliberations in her kitchen where she’d cook and her advisors would eat and decisions would be made. And I will forever admire the participant who comes to mediation unhurried, attentive, aware that each dispute and party is unique, and open to the unforeseen possibilities.

Just so it doesn’t get too common.