Years ago, attorney Ken Cloke was cast as the judge on a new TV series: The People’s Court. Rather than dictate a result, Ken helped the feuding parties reach agreement.
He was fired after one episode.
More recently, TV gave us Fairly Legal, a scripted show about a woman who ran around San Francisco convening mediations on an hour’s notice. She listened to the parties a good thirty to sixty seconds before telling them what to do and dashing off again.
The newest entry is Untying the Knot, which follows a real-life mediator who works with divorcing couples. I watched the pilot, hoping that this time TV would get it right. Alas.
The episode concerned a couple in conflict over three big-ticket assets. As the treasures were discussed and appraised, the mediator kept reminding the audience that she would “decide” who got what. But when the reveal came, she made recommendations, which – oh, the suspense! – the couple accepted.
So what’s the problem? The “mediators” on these shows ignore foundational principles of voluntariness and self-determination. The character in Fairly Legal operated more like an arbitrator—though without those pesky formalities of sworn testimony, rules of evidence, and a written decision. Or maybe she was psychic, since she solved everyone’s problems without needing to hear much about them.
The attorney-mediator in Untying the Knot at least acknowledged that the result wasn’t up to her. But the clients’ only choices were to accept her recommendations or return to stalemate. Having the mediator facilitate problem-solving – in other words, do what mediators actually do – wasn’t an option.
Why doesn’t TV get it right? For one thing, real mediations take a long time and not every moment is TV-worthy. But consider Shark Tank. In real life, no venture capitalist would make an investment decision in eleven minutes’ time. But the presentations to the sharks actually last as long as two hours and are heavily edited. Televised mediations similarly could be condensed to fit the time slot.
Another reason TV takes liberties is that yelling attracts more eyeballs than do sweet voices. But confusion about what mediation actually is not only does a disservice to the profession, but to members of the public who are involved in serious disputes but don’t want to litigate. It would benefit them to know they have other options. And given the divisions in our political and social culture, society at large could use models of constructive problem solving.
What about Ken Cloke? He’s now a renowned mediator, author, and the co-founder of Mediators Beyond Borders, which has trained thousands of people the world over in peaceful conflict resolution. Thank you, TV, for getting that one wrong.
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