In days past, we joked about how little-known mediation was and how frequently the process was confused with meditation. But, today, mediation is mentioned more and more frequently in the news and popular culture. Unfortunately, the attention is not always flattering. In fact, the attention sometimes reveals that mediation is being used in just the ways that some opponents of the process feared.

Chris Honeyman recently brought to my attention a reference to mediation in a February 28, 2008 New York Times story about Detroit mayor, Kwane Kilpatrick. The Michigan Supreme Court had just rejected Detroit’s appeal to keep secret a group of documents revealing attempts by the mayor and city attorneys to cover up Kilpatrick’s affair with his chief of staff. Among the documents was a deposition transcript in which an attorney described statements made during a “court-ordered facilitation” session.  Why did the city fight so hard to avoid releasing this and other documents to the news media? According to Kilpatrick’s general counsel, “the city’s fight to keep the documents private ‘was about the principle of protecting the confidentiality of mediation,’ not part of an attempted cover-up.”

That could be true, but it sure doesn’t smell right–and doesn’t make mediation look good.