Mediation is a more civilized way of resolving differences than litigation and should be celebrated. It allows parties to avoid the emotional costs of someone being declared wrong through a legal process. Mediation has a long history and requires trust between the mediator and the parties to work. The mediator must listen carefully to both sides and speak simply to maintain this trust, while also demonstrating a thorough understanding of complex issues when needed. Pushing a hesitant party can threaten the trust essential to a successful mediation.

1. WE SHOULD CELEBRATE MEDIATION
Why should we celebrate mediation? There might be several answers to this - it is cheaper and
faster than traditional litigation, saves the courts’ time, etc. - but one that I favor is simply that it
is a more civilized way of resolving differences, than litigation. Of course, a society that permits
resolution of differences via litigation is preferable to one where people settle their differences
with knives, fists and guns, but with few exceptions, litigation is a zero sum game: one party
loses, the other party wins; the winner gets to enjoy the feeling of vindication, and the loser must
come to grips with the fact that a judge said he was wrong. People fight (with fists or with
lawyers) because they believe strongly that they are right, and they find it very, very hard to give
up that belief, even after their last appeal has been denied. [See: Tavris and Aronson, Mistakes
Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts
(Harcourt, Inc. 2007)]. The loser will continue to feel resentment - towards the other party, the
judge and perhaps even his own lawyer. He may go home and kick the dog. The ideal outcome
of mediation is a “win-win” outcome, but even one where both parties are a little dissatisfied al-
lows them both to avoid the emotional costs of being told, “you were wrong.”
Mediation goes back a long way. According to Wikipedia:
The activity of mediation appeared in very ancient times. Historians located early
cases in Phoenician commerce. The practice developed in Ancient Greece . . . ,
then in Roman civilization . . . .
Some cultures regarded the mediator as a sacred figure, worthy of particular re-
spect; and the role partly overlapped with that of traditional wise men or tribal
chief. Members of peaceful communities frequently brought disputes before local
leaders or wise men to resolve local conflicts. . . .
http://en.wikipedia.org/wiki/Mediation#History (footnotes omitted).
Mediation would not have arisen, survived and gained such respect without the element of trust.
The parties to mediation have to trust the mediator to be impartial, or they will never initiate or
complete the process. In fact, trust is essential to a civilized society. “Without it, our societies
could not function at all.” L. Fisher, Rock, Paper, Scissors: Game Theory in Everyday Life (Ba-
sic Books, 2008), at page 129.
According to Barbara Misztal, author of Trust in Modern Societies, trust
performs three functions: it makes social life more predictable, it creates a sense
of community, and it makes it easier for people to work together. . . . The more
that we can trust, the easier and more fruitful our life becomes.
Id.

2. Without trust, there can be no cooperation, and cooperation is more civilized than conflict.
In The Negotiator: A Memoir (Simon & Schuster, 2015), George Mitchell described the conver-
sation he had with Bob Dole, then the senate minority leader, on his (Mitchell’s) first day in of-
fice as senate majority leader. He said to Dole, “I will never surprise you. . . . I will always give
you notice of my intentions. . . . I pledge to you that I will always honor and keep my commit-
ments to you.” Mitchell laid the foundation for cooperation with Dole by establishing trust right
off the bat, and maintained that trust by living up to his pledge. But trust is a fragile thing, easi-
ly lost or eroded, and a mediator has to be mindful of this.
In our interactions with others, we tend to value someone who listens to what we have to say, and
to resent someone who interrupts us or who passes judgment on our pronouncements. We don’t
like to be made to feel stupid by someone who speaks over our heads, using words or concepts
that we don’t understand. Thus, the mediator should listen carefully and thoughtfully to each
party, withhold judgment about what s/he hears, and speak simply and directly. Of course, there
will be cases where the issues themselves are complex and the parties are sophisticated, and in
such cases the mediator will lose the parties’ trust if he fails to demonstrate a thorough under-
standing of the issues and the parties’ arguments.
Finally, there often comes a point in negotiating a settlement where one party is ready to agree
but the other party is hesitant, and the temptation arises to give that party a push. It is a danger-
ous temptation, for if it fails that party will lose trust in the mediator and even if it succeeds the
party may walk away feeling resentment towards the mediator, the other party and the entire
process, and may try to disown the settlement or frustrate its execution.
We know that mediation does not always result in a settlement and that not all settlements can be
classified as “win-win” outcomes, where both parties walk away feeling satisfied. But whenever
the parties are able to achieve a settlement that they realize is better than proceeding with litiga-
tion, mediation should be celebrated as a triumph of cooperation over conflict.