Agency in mediation

I am interested in mediation for several reasons, including the relevance of mediation skills beyond the obvious contexts of negotiation and mediation; the overloading of our court system and the need for lawyers (and law students!) to be part of the solution; and the strong potential of mediation to provide a more satisfying and societally healthy kind of resolution than that provided by the courts.  It also seems to provide much more room for personal agency.  In my first few months of law school, it is already becoming clear that the court system, while often helpful, is limited in some important ways.

As part of my graduate studies, I researched a dispute over land ownership.  One of the biggest problems hindering resolution of the dispute was a lack of common ground (excuse the pun).  The parties often talked past each other:  Each claimed the moral high ground; each pointed to the other's failures to adhere to the law; each felt that the other's goals were unfair, unreasonable and unrealistic.  The parties had chosen to try to resolve thier dispute face to face, though.  Although the situation is not yet resolved, I hold out much more hope for resolution outside of the court system than I do for success through litigation.  This is primarily because I believe that our court system is premised on ideas of justice that favour the status quo, meaning that there is a bias against weaker parties.  Legal norms and assumptions often preclude different ways of understanding a situation, and the courts' notions of justice are often narrow and inflexible.  Although the courts might be able to wade through the complicated dispute and would no doubt reach a verdict, I wonder whether it would leave the disputers with any useful sense of closure or satisfaction.

While the hope of a winner-takes-all solution may be appealing to people on both sides of a dispute, each believing their own point of view is the correct one, the world is not black and white.  Complexity needs to be acknowledged - and then sometimes it should be let go.  A lot of personal agency and empowerment falls by the wayside when the process is essentially directed by judges and lawyers.  Parties in a court case don't always get the remedy they're seeking, and the cases can drag on for years.  Many of the cases we've read in class provide no resolution at all because of a procedural slip-up.  Often all people really seem to want is a recognition from the other party of the problem - they're not necessarily after vast sums of money.  Mediation cannot be the solution to every dispute, but in an increasingly disconnected world, it seems like having people listening to each other is a really good place to start.