Building upon the foundation established over recent decades, The Mediation Futures Project will gather and report upon our best thinking about the future of the mediation field and mediation practice.
The Future of Commercial Mediation

Business & Commercial Articles


Sam Imperati

Ironically, Bush and Folger are Evaluative

(11/21/16)Sam Imperati

There is room in our field for a broad spectrum of mediation approaches. We should celebrate innovation and a greater diversity, rather than disparage the methods of others. This article rebuts Bush and Folger’s article: "Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination."

Bernard Mayer

The Future of Mediation: Be Less Certain—and More Flexible

(10/24/16)Bernard Mayer

The challenge we face is how to be adaptable, but still focused and effective. To meet this challenge, we need to remain clear about our fundamental purpose, to keep working on refining our skills and enhancing the range of approaches we can take to achieving those purposes, to commit to diversifying our field, and to maintain a clear hold on our values and ethical principles.

Claudia Maffettone

110 Years of Mediation: Principles, Opportunities, and Challenges

(7/11/16)Claudia Maffettone

In this article, I will offer a succinct overview of definitions, principles, approaches, opportunities and limits of mediation, a method of conflict resolution encompassing a wide range of practices.

John Ford

The Future of Mediation

(6/09/15)John Ford

A coach once asked me to predict which way a drop of water would go around a rock up ahead. Of course there is no way of knowing: the water drop may not make it due to evaporation to the atmosphere, absorption by the river bank, and then if it does make it to the rock, whether it goes left or right, over or below. However, even if the future is uncertain, we can still comment on where the drop of water is at the moment. Even its relationship to our imagined future. And of course about its past.

Marvin E. Johnson

The Integrity of ADR Processes and the Risks of Blurred Boundaries

(4/14/15)Marvin E. Johnson

Historically, the three main dispute resolution methods used in the United States have been violence, avoidance, and litigation. Today, there are a variety of additional processes that can be used to foster the resolution of disputes. Many of these processes began gaining popularity in the early 1970s as a result of frustration with the varied human and financial costs associated with litigation.

Alan E. Gross

Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making

(4/06/15)Alan E. Gross

Bush and Folger recently contributed an article to this “Mediation Futures Project” series that advocates strongly for “Refocusing on Party Self-Determination” but also suggests that mediators should conform to orthodox Transformative Mediation practices. This partial rejoinder, while acknowledging the important contribution of the TM focus on self-determination to mediation practice, also recognizes the value of other mediation practices.

Chris Poole

The Future of Mediation

(3/26/15)Chris Poole

It is impossible to talk about the future, present or past of mediation without putting some sort of definition to that term. Clearly, mediation as dispute resolution has been around as long as disputes. When defined as a process that involves a designated third-party to assist in the resolution of disputes, mediation can be considered an old process.

Peter Salem

The Future of Family Dispute Resolution: Mediation as a Piece of the Puzzle

(3/20/15)Peter Salem

Had I written about the future of family dispute resolution in the late 1980s, when I was a young and enthusiastic child custody mediator working for a Wisconsin family court agency, I would probably have focused exclusively on mediation rather than considering the current broad spectrum of family dispute resolution (FDR) processes that I did not anticipate at the time.

Merri L. Hanson

Back to the Future of Mediation

(3/05/15)Merri L. Hanson

For some reason, beyond my understanding, the decades old debate continues. How should mediation be defined? The better question is, “How can the practice be applied?” And herein is the genesis of the divergent paths upon which mediation has developed in the last thirty years.

Henry Brown

Musings on Mediators, Pizza-Makers, and Humanity

(3/02/15)Henry Brown

I began this article on the future of mediation practice at what I thought, reasonably enough, was the beginning. Discussing how I came to New York in 1985 to train with John Haynes on a new approach to managing disputes that at that time had not yet found its way to the United Kingdom where I practised as a solicitor. However, In the course of writing and reviewing this piece, it began to dawn on me that while the trip was my conscious recollection of the beginning, it was not the actual beginning of my attraction, engagement and investment in what has become a personally and professionally fulfilling career.

Forrest (Woody) Mosten

The Future of Mediation: Twenty Predictions for Mediation in 2030

(3/02/15)Forrest (Woody) Mosten

If as Eleanor Roosevelt said, “The Future Belongs To Those Who Believe In The Beauty Of Their Dreams,” we in the mediation community have much to look forward to.

Rafael Gonzalo Medina Rospigliosi

La Tercera Ola de los Mecanismos Alternativos de Solucion de Conflictos

(3/01/15)Rafael Gonzalo Medina Rospigliosi

Los Mecanismos Alternativos de Solución de Conflictos con su sigla MASC, engloban a un conjunto de procedimientos solucionadores de conflictos humanos, de manera autocompositiva, heterocompositiva o hibrida, sin utilizar la fuerza y ejecutados fuera del proceso judicial, es decir, con los MASC se crea soluciones no jurisdiccionales e inteligentes, caracterizados por ser no confrontacional, cooperativos, de autogestión y de protagonismo ciudadano, siendo incorporados el último decenio del siglo pasado, en los sistemas de justicia, en casi toda América Latina.

J Anthony Licciardello

Revolution Calling

(2/27/15)J Anthony Licciardello

The Need For Increased Coordination Among Divorce Professionals: The divorce experience starts early...perhaps in the therapists office and the Wednesday reading group where the decision is made...quietly... to move on. And once the papers are signed there are months of recovery, both financial and psychological, until a sense of "normal" is achieved. The whole process can take several years from start to finish, and involves a host of professionals. So it is no small surprise that the outcomes are varied and often poor.

Larry Gaughan

Mediating Divorce Agreements: The Problems and the Potential

(2/26/15)Larry Gaughan

It was really exciting to be part of the divorce mediation movement when it became national around 1980. Almost everyone seemed to be aware of the problems with the adversarial system of divorce, and mediation held the promise of a process that was more personal and far less expensive and time consuming. Mediation training was mainly focused on divorce agreements, and those training courses rapidly became a major source of income for the trainers.

Don't Rush

(2/26/15)Constantin-Adi Gavrila, Christian Radu Chereji

There is a lot of talk nowadays about the apparent failure of mediation to live up to its potential. Reports published on paper and online, presented before institutions or at various conferences, point to the relatively low number of mediation cases compared to the number of lawsuits filling the logs of the courts and then draw the inevitable conclusion that mediation has missed the opportunity of (be)coming mainstream.

Tracy Allen

The Mediation Future

(2/20/15)Tracy Allen

So long as market users , i.e. the true decision makers, remain dependent on their legal counsel to select, direct and control the mediation/negotiation process, there is likely to be little advancement in public education about the importance and availability of mediation.

Katherine Triantafillou

The Art of Conversation and The Future of Mediation

(2/20/15)Katherine Triantafillou

Although I am pretty good at envisioning the future, I don’t really have any grandiose images of the future of mediation. Rather, I have some cautionary tales and a few suggestions for how we might impact the future and avoid the pitfalls of insularity.

Nathan Witkin

Negotiation Advocacy and the Future of Alternative Dispute Resolution

(2/03/15)Nathan Witkin

One promising and yet underdeveloped segment of the alternative dispute resolution movement is negotiation advocacy. Roles such as collaborative attorney and conflict coach are allowing ADR practitioners to enhance their clients’ experience at the negotiation table with communication coaching and a style of advocacy that is cooperative in nature.

F=T(Q+I) F = The Future; T=Trust; Q=Quality; I=Information

(2/02/15)Michael Leathes, Deborah Masucci

The Future of mediation hangs on several factors. Probably the most important is Trust. If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes.

Robert Benjamin

The Place of an Old Fashioned Deal Broker in the Future of Conflict Management: An Interview with Kenneth Feinberg

(2/02/15)Robert Benjamin

Robert Benjamin recently interviewed Kenneth Feinberg for Mediate.com about his career over the last 30 years. He has managed the settlement of complex and difficult claims in the wake of some of the largest catastrophic events we have faced as a society and has pioneered an approach that has altered, not only the legal landscape, but also our culture. Read the interview in this article.

Joe Markowitz

Technology

(1/30/15)Joe Markowitz

If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago.

John Kenyon

Beyond “Half Full or Half Empty” - Getting the Right Glass

(1/27/15)John Kenyon

The mediation field continues to debate its future with optimists and pessimist talking past each because fundamentally we do not agree on what constitutes mediation. The article takes a different perspective and suggests several ways to tackle the thorny issue of definitions along with using a practitioner to manage these divisive issues.

Howard Gadlin

Truths in Advertising

(1/26/15)Howard Gadlin

Several times in the course of my life I’ve been involved with a cohort of people who envisioned themselves as a possible vanguard of fundamental social change even while they were pursuing professional careers In fact, many of the early mediation practitioners were also veterans of civil rights and anti-war activities who were drawn to ADR as an alternative path to justice, equality, and social change.

Kenneth Cloke

The Future of Mediation: Toward a Conflict Revolution

(1/18/15)Kenneth Cloke

We evolve, not only as individuals, but as couples, families, groups, organizations, societies, economies and polities, both in the nature of our conflicts and in our approaches to resolution, moving from simple to more complex, nuanced and skillful forms. But in order to evolve, it is necessary for us not merely to settle or resolve the particular conflict we are facing, but also its hidden coda, essential nature, or binding principle, by learning the secret lesson it took place in order to teach us.

Doug Yarn

Re-conceptualizing the Work as Something Bigger than Ourselves--Reconciliation

(1/05/15)Doug Yarn

After toiling in this field for 30 years, I have the strong sense that the patina has worn off and the institutions we have created are fraying and unsustainable in their current manifestations. I’m in good company in this perception; however, that doesn’t mean there is no future for mediation.

Ralph Kilmann

Thomas-Kilmann Instrument: A Reflection on 40 Years

(1/02/15)Ralph Kilmann

Many mediators have used the TKI to illustrate concepts of avoidance and collaboration. On the 40th anniversary of the Thomas-Kilmann Instrument, Ralph Kilmann reflects on what they've learned.

Tom Stipanowich

Beyond “Getting to Yes:” Building Mediation Skills and Insights into Relationships

(12/16/14)Tom Stipanowich

A quarter century ago many believed we were experiencing a revolution in the way conflict was managed. Nowhere was this more noticeable than in the construction sector, the primary focus of my practice as an advocate and dispute resolution professional.

Claiming Mediation's Future

(12/15/14)Susan Dubow, Elinor Robin

Our own article on the future of mediation focuses on emerging trends and untapped potential. In addition we decided to write a response to “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination” which was written by the esteemed Robert A. Baruch Bush, and Joseph P. Folger for Mediate.com in November 2014. We are not submitting this rebuttal in an attempt to change any one’s mind. Instead, as mediators we are generally fascinated with hearing, and telling, the rest of the story, so here it is…..

Colin Rule

A Future of Social Technology In Support of Peace & Justice

(12/08/14)Colin Rule

I envision a world where our social technology is designed in a way that builds human empathy, identifies and resolves conflict early and effectively, and introduces an era of greater peace, justice, and happiness. It will take a lot of work to get there, and there will be a lot of bumps in the road, but I can see it plain as day. That’s my hope for the future of mediation.

Sam Imperati

Our Mediation Future

(12/02/14)Sam Imperati

I have practiced ADR since 1992. I look back fondly and forward enthusiastically with great hope. In thinking about “what from our past has worked best and should be brought forward and emphasized,” I decided to review two law review articles I wrote early on in my career. What follows is a summary of what I thought then. It will be followed by summaries of two articles about what I think currently. This article will then conclude with my half-formed or mal-formed thoughts about the future.

Beth Graham

Reflections on the State and Future of Commercial Arbitration

(11/11/14)Beth Graham

What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.

The Urgent Need For Data: Are the Needs of Users and the Dispute Resolution Market Misaligned?

(11/07/14)Michael Leathes, Deborah Masucci

Seismic tremors emanating from London's Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution's customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.

Clare Fowler

Editorial Notes on Commercial Mediation Future

(10/23/14)Clare Fowler

This page includes editorial notes on the future of the business and commercial mediation sector.

Harvesting Data to Shape the Future of International Dispute Resolution

(9/22/14)Michael Leathes, Deborah Masucci

Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.

Art Hinshaw

ADR as a First Career

(9/05/14)Art Hinshaw

There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics. For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career. I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation. But is this necessarily the narrative for our next generation?

Frank Sander

Pioneer Series: Concerns and Optimism for Future - Video

(7/07/14)Frank Sander

Frank Sander reflects on his concerns within the field, which include the tension of quality vs. quantity of the practice, the lack of studies of cost effectiveness, disappointments with the court system fees, and the difficulty of getting more young people/apprentices into the field. However, he's optimistic about the future of mediation.

Jeffrey Krivis

The Settlement Drift

(6/21/14)Jeffrey Krivis

The "drift" in our ability to go to war, as written about by Rachael Maddow, is similar to what has become of modern mediation in the litigation arena. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was initially seen as the final play in the drama. Now, almost 25 years later, the mediation session has transformed itself into just one additional step in the litigation menu. The process has become strained to the point that the current approach is to schedule mediation without any sense of urgency. It is done to comply with a court order or simply as a matter of practice, now often with no expectation of finality.

Joseph Berljawsky

The Importance of Mediation in Family Business Management

(4/04/14)Joseph Berljawsky

Managing a business can be difficult enough—but when your in-laws are the board of directors and your sister is the CEO, management of a family business can also become a contentious issue. Problems related to leadership and ownership of family businesses arise in a variety of situations. Sometimes there is a power struggle, other times people feel they have been treated unfairly or do not get enough of a say in the company.

Michael P. Carbone

Quality Control

(3/21/14)Michael P. Carbone

The purchaser of any service has to know in advance whether the provider can deliver high quality. If the purchaser happens to be a lawyer, and if the provider will be a mediator, how should the lawyer evaluate the potential provider?

Joe Markowitz

Mediation's Future

(2/14/14)Joe Markowitz

I've heard a number of evangelists of the mediation world talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court.

Uma Ramanathan

Solutions and Future Plans of Mediation as an ADR Method

(12/27/13)Uma Ramanathan

Mediation in our country is no more a toddler. It has started to have an identity and it is time that we devise a cohesive plan for the growth of mediation in a manner that would allow cohesion among the stakeholders in the process. Changing the mind set of all concerned is now essential to take stock of where mediation is heading and what is to be done.

The Future of Financial Services Arbitration

(10/04/13)Emily Blanshard

Arbitration practitioners in Asia have long been used to seeing arbitration clauses as the prevalent form of dispute resolution in cross-border finance transactions. As other emerging markets (such as those in Africa) continue their rise, this trend looks set to spread to other regions. Within the EMEA (Europe, Middle East and Africa) region typically used as a business division within the financial services sector, it is only for intra-EU transactions where the old orthodoxy of court jurisdiction continues to hold strong.

F. Peter Phillips

Regulating, Certifying, Creating Barriers to Entry….

(7/08/13)F. Peter Phillips

One must demonstrate training, skills or both in order to be listed on various court-annexed mediation panels. At the same time, however, many of those courts don’t mind in the least if parties go to a mediator of their choosing irrespective of whether that person is listed on the court-maintained panel.

Mohamed  S. Abdel Wahab

ODR and e-Arbitration – Trends & Challenges

(5/17/13)Mohamed S. Abdel Wahab

This chapter is divided into five sections. In section 1, the author sheds light on the conceptual framework of e-arbitration. In section 2, the issues pertaining to the e- arbitration agreement are scrutinized. Section 3 focuses on e-arbitral proceedings and section 4 addresses e-arbitral awards. Section 5 provides an overview of some e-arbitration projects and initiatives. Finally, the author offers some concluding observations,

Chris Poole

The Present and Future of ADR

(5/01/13)Chris Poole

The budget cuts to the court system have perhaps been felt more severely in California. In March, California Chief Justice Tani Cantil-Sakauye lamented in a speech to the state legislature, “our judicial branch budget has been cut greater and deeper than any other court in the United States.”

Aura Esther Vilalta

ODR and E-Commerce

(3/23/13)Aura Esther Vilalta

Cyberspace has become a realm of commerce and a market with various kinds of transactions using acronyms such as: C2C, B2C, B2B, C2B or M2B. It removes traditional barriers between “offerors” (producers, sellers, etc) and “offerees” (clients, users, consumers.). Time, geographical distance and language are no longer obstacles to trade and, consequently, cross border disputes have increased. Online Dispute Resolution (ODR) mechanisms have emerged as a natural response to the need for new dispute resolution systems.

Art Hinshaw

The Supreme Court and the Future of Arbitration

(3/22/13)Art Hinshaw

At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration. Here’s a short blurb describing the program.

Michael Leathes

The Future of ADR in 2020

(10/12/12)Michael Leathes

This article discusses the Good, the Bad, and the Ugly of mediation. This is an edited version of the Opening Plenary Keynote Speech at the Inaugural 5C's ADR Conference held at the Supreme Court of Singapore on October 4-5 2012.

Charlie Irvine

Hanging On The Telephone: The Future of Mediation?

(11/14/11)Charlie Irvine

I recently attended training in ‘telephone mediation’ delivered by two members of Mer Majesty’s Court Service (HMCS) Small Claims Mediation team. Over 99% of their mediations are conducted over the telephone in an hour or less.

Joe Markowitz

Imagining the Future

(11/07/11)Joe Markowitz

Congratulations to my fellow SCMA board member, and new president Barbara Brown, for pulling off a very successful SCMA fall conference at Pepperdine this weekend!

Michael Leathes

2020 Vision - Where In the World Will Mediation Be In 10 Years?

(11/17/10)Michael Leathes

Where could mediation be in 10 years time? Can stakeholders realistically exert a significant positive influence on the field’s future progression?

Robert Benjamin

The Mediator in Technocracy: The Future of Conflict Management Practice

(8/24/10)Robert Benjamin

Conflict management work should fare well in the rapidly proliferating administrative and bureaucratic maze of what is becoming known as the technocracy. Based on a belief in the power of rational governance to correct complex issue, a gaggle of laws have been generated requiring constant interpretation and untold agencies which often work at cross purposes and threaten to produce as many snafus as solutions. The only salvation may well be the human touch of negotiators and mediators who are able to skillfully work creatively and common sensibly outside the bounds of traditional notions of rationality to bring about workable solutions.

William E. Hartgering

William Hartgering: Suggestions to Future ADR Professionals - Video

(4/16/10)William E. Hartgering

William Hartgering gives his thoughts on what prospective mediators should know and the future of alternative dispute resolution,

Kimberlee Kovach

Kimberly Kovach: Hopes for the Future - Video

(4/04/10)Kimberlee Kovach

Kimberly Kovach shares her hopes for the future. These include having ADR taught in schools so people can build a skillset, shifting the resistance to mediation into have people collaborate more.

Nina Meierding

Meierding, Nina: Future of Mediation and Personal Fulfillment - Video

(12/06/09)Nina Meierding

Nina Meierding describes the future of mediation as continuing with much debate and outside influences, but sees the principles and theories expanding throughout society. She also talks about the personal fulfullment she gets from helping others create an agreement.

Phyllis Pollack

M3: The Future Of Mediation

(10/19/09)Phyllis Pollack

In a recent blog, I mentioned that the Southern California Mediation Association (“SCMA”) will be putting on its annual conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. Entitled “M3 – The Next Generation,” (see,2009scmaconference923095) its theme is the increasing use of mediation in our society. In 1976, Professor Sander espoused the novel proposition of having a “multi-door courthouse” at the Pound Conference. (I will call this M1 or the first generation of mediation).

Margaret Shaw

Shaw, Margaret: Hopes for Future of Mediation - Video

(5/29/09)Margaret Shaw

Margaret Shaw talks about what she hopes to see in the future for mediation: that mediation in schools will make a difference; certification regulations will form slowly, so as not to lose the flexibility of the field; that there will be an increased emphasis on collaboration in society.

L. Randolph Lowry

Lowry, Randy: Views on Future of Mediation - Video

(5/16/09)L. Randolph Lowry

Randy Lowry speaks of the developments in the mediation field he foresees: more educational programs in schools, more institutions, more agencies practicing mediation, growth of programs, program expansion at Pepperdine, contribution to medical field.

Jim Melamed

The Evolution and Future of Mediation: Reconnecting with our Activist Roots

(5/08/08)Jim Melamed

The purpose of this article is to recount some of mediation’s past, consider its current state, and offer thoughts on development trends for the future, asking the question whether we are doing “justice” to the “mediation movement” we have created.



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