I didn’t exactly rub my eyes in disbelief, but it was close. “How to Win at Mediation” was the headline in the Wall Street Journal which jumped out at me. Here was a headline which appeared to suggest mediation offered something which could result in the other disputant being a loser. I have spent too much time explaining to anyone who will listen that mediation is not about winning to let such a statement pass unchallenged.

“How to win at litigation” would have been an understandable headline. Litigation can result in winners. But it’s important to remember something. It’s a big something that litigating lawyers will often avoid emphasising when discussing the merits of a case with their clients. And that is, for every winner there is a loser, and sometimes both disputants end up as losers.

By suggesting a disputant could win at mediation, the Wall Street Journal was implying it would be at the expense of the other disputant. Responsible journalists and sub editors should know that mediation does not have winners and losers. It works precisely because it does not have winners and losers. If a disputant felt a proposal would result in a “loss” they would not accept it.  The idea is that mediation offers a unique win-win outcome. All the participants are winners.

So the headline could have read “How both participants can win at mediation”. Anyone who reads the article, though, might agree with me that it unhelpfully promotes the idea that it is appropriate for someone to attempt to gain an advantage in a dispute with another by engaging them in mediation. But that’s for another blog.

Meanwhile, if you want to read the original Wall Street Journal article, you’ll find it here.

I am Stephen G Anderson. I am a mediator.