Barnacles, Aristocracy and Truth Denial: Three not so Beautiful Aspects of Contemporary Mediation

Like any fairy tale, the Sleeping Beauty story has many variations. Most are far more complicated and sinister than the Disneyesque version that the public is familiar with. The same is true with mediation. On the surface, it is a beautiful story-self-determination, mediator neutrality, and party empowerment.

In practice, especially in litigated cases, something else quite dark is actually transpiring: parties are literally locked away from one another. Mediators routinely testify and often actively "assist parties" to see the world as the mediators and the parties' lawyers do. Settlement is a prime directive and driving force. Institutionalization through statute and court rule has spawned an ultimate judicial irony-an entire body of litigation about the mediation intended to avoid litigation in the first place.

Judges, many of whom likely hope to become the "elite" mediators of the future, are not even sure that the clients need to be in the room at all.