A significant problem with mediation is the fact that the term itself is vague. Mediation could be evaluative, facilitative, or transformative. Which of those approaches does one mean when they refer to mediation? There are differences between pre-filing and post-filing mediations. At what stage are the parties entering into the mediation? Is the mediation voluntary or mandatory, as it is when parties file a Request for Order Regarding Child Custody and/or Visitation? Will the mediation involve caucusing? Is it a problem-focused or solution-focused mediation? Is it a short-term or long-term mediation? Will attorneys be attending the mediation? How directive, if at all, is the mediator? These are only some of the many factors that cause confusion with the use of the term "mediation." The only certainty is that the process involves at least one neutral professional. (Joan B. Kelly, A Decade of Divorce Mediation Research, 34 Fam. & Conciliation Ct. Rev. 373, 375 (1996)).
The use of mediation as a means of resolving conflict has existed for thousands of years. It originated as a means of resolving disputes in a private manner, preserving social harmony, valuing "compromise," and the importance of accepting personal responsibility.
In intellectual property law, trademark infringement is based upon the likelihood of confusion for the consumer in the marketplace. Without such protections, people might mistakenly purchase or use products or services that they reasonably believed to have been manufactured or provided by another person or entity. This would enable people or entities to wrongfully benefit from the goodwill created by another and/or harm the others' reputation for no reason other than the confusion on the part of the consumer. Unfortunately, such protections do not exist with regard to general concepts.
Most lawyers and judicial officers believe that mediation is evaluative and are unfamiliar with other forms of mediation. Evaluative mediation is virtually identical to settlement conferences presided over by judges. The mediator helps the parties resolve their disputes by "judging" the legal strengths and weaknesses of each party's case. Thus, the mediator focuses on each of the parties' rights under the law. The mediator assists the parties in evaluating the case and analyzing the costs and benefits of reaching a mediated agreement at that time versus a judicial ruling at a later date. This model of mediation clearly requires the mediator to be involved in the outcome. Is such mediation private? While the terms of the resolution may be private, the dispute itself may very well be public, depending upon whether the mediation took place before or after the commencement of litigation. Does evaluative mediation preserve social harmony? Conflicts of any type can be resolved either through force or diplomacy. In legal disputes, parties try to exert force on each other though the courts. "We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they do not want to do," says family court Judge Bruce Peterson of Hennepin County, Minneapolis. The threat of having a judge coerce "a person to do something they do not want to do" unless they agree to certain terms, is itself coercive. In other words, isn't evaluative mediation just an alternative form of litigation? If so, it does not preserve social harmony. Does evaluative mediation value "compromise?" Does litigation value "compromise?" If not, how would an alternative form of litigation value "compromise?" Does evaluative mediation value the concept of accepting personal responsibility? Isn't the law all about blame and fault? If so, where does the concept of personal responsibility fit in?
In other words, those involved in the legal system have created confusion in the marketplace regarding the concept of mediation itself. If those involved in the legal system don't know what mediation is supposed to be, how can we expect the general public to grasp the concept?