Vail Daily column: Mediators are not a new phenomenon | VailDaily.com

Vail Daily column: Mediators are not a new phenomenon

As the mediator enters the conference room, clad in clothes befitting a New England professor, a legacy of thousands of years trails behind him. His role, his position as a neutral facilitator of dispute resolution has been filled by countless men and women across geographies and across time. They may have worn the insignia of a Phoenician merchant's guild, the white toga of a Greek proxenetas, perhaps the saffron robes of a Buddhist monk, the headdress of a Lakota chief or the three-piece suit of a nineteenth century European diplomat. No matter their couture, these figures fulfilled an important mission within their respective societies: the maintenance of civil discourse, the tackling of seemingly intractable problems, the restoration of sanity to communities on the brink of conflict. In modern times, with mediation often derided as the refuge of weak-willed, new-age types, it is important to remember that mediators are not a new phenomenon.

Historically, mediators have been celebrated as sacred or even mythical figures, capable of bringing peace where none was expected. Chieftains or soothsayers occupied a central position in their tribes because, and not in spite of, their ability to assuage concerns between disputing members of their people. Internal accord was a critical component of their community's ability to survive and flourish. Catholic clergy in the Dark/Middle Ages were often called upon to serve as intermediaries between civil authorities and criminal elements, or between warring city-states. The power of their assumed divinity allowed them to intercede in incidents that could have seen the downfall of Western civilization.

A curiosity of law

In contradistinction, in many current legal circles, mediators fall on the respect hierarchy somewhere around practitioners of the custodial arts. Litigators, the warriors of the profession, are held in high esteem, with mediation seen as a curiosity or a place to go when you cannot hack the big time. This order of priorities goes a long way toward explaining our culture's inability to escape the scourge of lawsuits that plague our business and personal lives. A return to the ascension of the mediator as valued figure must be part of the method of legal reform.

The historical roles of a mediator transcended mere legal systems. They solved problems bigger than petty squabbles. They were linchpins of their societies, teasing out the threads of conflict, opening community dialogue, allowing their people to craft solutions that befitted the grandeur to which they strived. Modern mediators also serve this function. For example, a mediator may help a municipality determine how to smooth over ruffles created when, for example, a halfway house or drug treatment facility wants to move into town. But contemporary public consciousness does not realize that magic of which mediation is capable. Awareness of not only the mediator's place in the pantheon of social actors but also the breadth of what has and can be accomplished is an important component of the cultural education that the mediation community must undertake.

Centuries of Tradition

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Past societies tended to ascend not only the mediator as a person but the process of mediation as a whole. It was an obvious outgrowth of the philosophies guiding sociopolitical decision-making. Confucius believed that there were certain harmonies in human interaction that should not be disturbed. Therefore, there was emphasis placed on conciliation, compromise and agreement rather than coercion as a means of achieving a tenable end to disputes. Buddhist teachings and Islamic mores were similar in this regard.

Unsurprisingly, the same attitudes toward cooperation and negotiation are observed in the modern-day countries that evolved out of these historical conglomerations or which internalized their lessons. With significant barriers to litigation, including the social stigma associated with a lawsuit, the Japanese and Chinese cultures emphasize mediation as the primary tool for dispute resolution, in the business context and otherwise. African tribal and governmental arrangements frequently utilize informal mediation techniques that are highly accessible to any member of the community. Each of these modern focuses arose out of centuries of tradition, where the village elders willingly assumed the burden of ending internecine conflicts.

Breaking the cycle

America is a country begat by war, a war that followed centuries of prior wars on the European continent or at European hands. We have fewer examples of effective compromise in our much-younger traditions that we can use as a base for determining our future actions. A melting pot of ideas and cultures, we have the opportunity to use the histories of our constituent parts to craft a future that breaks the cycle of partisan bickering, of socioeconomic warfare, of environmental degradation.

At the heart of this new vision stands the humble mediator, ready to charge into the breach armed only with a smile and a handshake and not a gun. Scared though he may be, he stands tall, knowing that there were many great souls that preceded him.

T.J. Voboril is a partner at Reynolds, Kalamaya & Voboril LLC, a local law firm, and the owner and mediator at Voice Of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, tj@rkvlaw.com or visit http://www.rkv law.com.