CADRE Resources

Maximizing Mediation

This article suggests that the adoption of a maximizing mediation approach by the mediator in family and other matters is permissible and advised. There are no barriers to mediators moving beyond the world of barely sufficient processes and barely sufficient results to stimulate maximized processes and maximized results. In considering this proposition, let us first think about what we mean by "maximization" and the extent to which maximization exists in various processes.

For the moment, let us assume that maximization has to do with "assisting participants to be at their personal best and assisting them to identify their fullest range of interests and assisting them to most capably solve their problems." It is important that maximization is understood as an aspirational goal, not a minimum standard. Maximization is a goal never fully achieved. It is a guiding light for realizing mediation's potential.

Maximization takes empowerment to the "nth" degree. Rather than empower a bit, or some, or comparably or to balance, a theory of maximization suggests that the only way one can empower participants consistent with the mediator's duty to be impartial is for the mediator to maximally assist each participant to be at their best in seeking maximum satisfaction of their interests. In fact, it is suggested that empowerment without maximization may be ethically challenged as partial mediator behavior.

It should be immediately noted that mediation participants will commonly have different personal needs and different ideas about the process and substantive interests that they would like maximized. One participant may want to maximize simply getting the matter over as quickly and cheaply as possible. The other may have interest in taking whatever time is necessary to talk about relational issues and to ensure that they do not make any foolish decisions. The goal for the mediator is to seek to maximimally assist each participant in the way that they want to be assisted.

Consider asking participants, "On a scale of 1-10, please identify the extent to which you would like the following emphasized in your mediation process:

1. a better understanding of the process
2. ensuring effective legal advice and review
3. discussing what has happened in the past
4. discussing relational issues
5. joint meetings
6. individual meetings
7. face to face meetings
8. email and online communications
9. speed
10. economy
11. other: _______________

It is not for the mediator to impose the qualities to be maximized, but, rather, for the mediator to elicit from the participants, through questionnaire devices and otherwise, the qualities that they would respectively like maximized in their mediation. The mediator's duty is to then seek to identify ways of wor