Preventing The Death Of Mediation

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Several years after I began my journey, the court system endorsed mediation as a preferred method for resolving disputes. In looking back at the institutionalization of mediation in our court system, I find that there are four cycles that have gone into the movement:

1. Infancy – This is when most lawyers could not tell the difference between mediation and meditation, and thought that mediators sat on beanbag chairs drinking herbal tea and lighting incense.

2. Childhood – Having now defined the basic term of mediation as a process where a third party helps facilitate a negotiation, our childhood was marked by a significant event. In the case of the court system, that significant event occurred in 1993 when the California Legislature enacted CCP Section 1774 and began ordering cases to mediation.

3. Adolescence – In the 1960s, the "in thing" was to listen to the Beatles, protest against the war in Vietnam and experiment with drugs. In the 1990s, the "in thing" was to attend mediation workshops and learn how to outfox the mediator, or how to actually transition your litigation practice into becoming a mediator.

4. Adulthood – The conventional wisdom is to reject those things you accepted as an adolescent. In recent years, some people would rather have a root canal then attend another mediation and listen to an impartial neutral describe the process that ends up becoming quite predictable. Though there has been an increase in the number of cases going to mediation, there has been a decline in the appreciation of the process because of numerous factors, not the least of which is the lazy mediator. For mediation to continue in its adulthood and grow, there needs to be a reacceptance of the process.

What has happened in the last several years is that mediation has learned to need litigation to maintain its hunger for business. In the early cycle of the mediation movement, the opposite was true. Litigation needed the process of mediation to decongest the court system, presumptively save money for clients and allow more control of the outcome to the parties. Mediation has now become a commodity for litigation rather than a useful resource. Due to the proliferation of mediators and the reliance on litigation to feed this animal, mediators are forced to conform their practices in a way that limits development of strategic techniques and creativity. This conformity means that the mediation "product" has become a low margin commodity in many circles. Mediators copy each other in style and lose their ability to differentiate themselves. Even the high-priced mediators begin to look like their litigation counterparts, basically offering the same service.

Because of the commoditization of mediation, large consumers of our service, particularly insurance companies, are more in tune with reducing vendor costs. Since mediators have now fallen into the trap of becoming a vendor, insurers are managing the costs of the process such that they are controlling the marketplace.

As compensation for mediators has dropped, the cost of being in business has increased. The reason for this is that large insurance companies continue to cut costs, yet require mediators to provide more value, such as large conference facilities, espresso, Krispy Kreme Donuts, and lunch menus. In fact, many insurance companies require mediation providers to supply computerized data of statistical case information that they can combine with their usual claims analysis. As a result, individual mediators who may have started the movement years ago are now moving in droves to serve as panel members with the various providers. This has resulted in the further commoditization of the mediator, in that it is very difficult to differentiate between panel members.

The most innovative mediators have transformed their practices into unique processes in which they are able to charge for their experience and wisdom, not for being an off the shelf commodity.

The bad news is that the mediation profession has become predictable. Some in the legal profession think they know more about the mediation process than the mediators do. The process has often become stale and the mediator expendable.

Moreover, lawyers who bring cases to mediators often resent them because lawyers perceive that the mediation world is easier than having clients and advocating a position. In fact, the legal world is wondering why mediators don't have some professional requirements, such as continuing education, grievance procedures, or other annual requirements to maintain their licenses.

In order to compete in the adult world of professional mediation, we must outpace the learning curve of the markets we service. One way to do this is for mediators to go back to their roots of collaboration. Like the expert trial lawyer who gets better at cross examining witnesses with experience and education, the expert mediator can begin to collaborate with his/her colleagues to learn new techniques that serve the profession. With today’s technology at our fingertips, we could easily set up chat rooms to share techniques.

Another way to stay current is to make sure we don't take our cases for granted. Though we are all territorial creatures, our clients are not loyal forever. We must work to maintain their trust. We can also elevate the requirements of continuing education in order to accentuate our commitment to improving mediation. This would overcome our clients’ concerns about dealing with a repetitive, non-creative process. We would in essence empower our clients by giving them the process they need.

While the responsibility for change rests significantly on the mediation community, the litigation community would be well served by learning from past experience as well. Consider the course of court ordered arbitration since it was conceived in 1972. Initially it was a success for both the courts and the litigants. Cases would resolve following arbitration because lawyers took it seriously. Cases were prepared and presented in a formal manner such that they could be thoroughly evaluated before trial.

As time passed, some lawyers began attending arbitrations without preparing, taking the easy road of asking for a trial de novo rather than spending the time getting the case prepared. Statistics on the successful resolution of cases following court ordered arbitration took a nose dive. In fact, the courts were so fed up with the outcomes of court ordered arbitrations that they have for the most part stopped referring cases into that system. Instead, the courts have preferred to refer the cases to mediation, where the parties could actually have a binding outcome following a successful mediation.

What I’m hearing from many of my students who volunteer as court ordered mediators is that lawyers are simply not preparing or taking the process seriously anymore. Defendants come into the mediation without an intent to negotiate in good faith and the cases lock up quickly and are put back into the court system. It would seem that history is repeating itself. Like the arbitration system before it, the mediation system that has emerged through court ordered programs has begun to slip into the same indifference that has engulfed the arbitration system.

Where do we go from here? Both sides need to take responsibility for our state of affairs. Mediators could do a better job being creative and learning techniques that are less predictable. Litigators could invest in preparation and take the process seriously. Or better yet, we could eliminate the court ordered system altogether and let the marketplace decide which cases should go to mediation.

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Donald  Adams,   San Diego Ca	adams_mediation@prodigy.net      05/20/06
Education and Networking equals success
This article is so very true. Both Attorneys and clients do walk into a mediation with th intent of shutting down, or just not wanting to participate. Mediators have to be flexible enough to change styles. I have recently found success with the Facilitative style then change to Evaluative style after hearing opening statements. Both sides tend to snap to attention when I call for a caucus with just the attorneys and then individual attorneys. I also find that if you know the numbers for Auto PI and what is needed to make attorney, client, and Medical facility happy. Your'e 90% there. After getting educated on the numbers I have turned around a once hated sector. I now love to get Auto tort PI from Los angeles county superior court. Its all in the networking and education from other Mediators. Add New Comment

David Levin,   Albuquerque NM	11/16/04
The metaphor of human life stages is fascinating. There are, sadly, some accurate comparisons. However, the evolution of life stages may not end with arrival at "adulthood". I observe many of the related symptoms in our court system and community. Yet, there continue to be stages of evolution, including new generations of professionals entering and re-invigorating the system. I would be interested in seeing the metaphor applied prospectively to include additional life stages. The value of the metaphor may be still fuller. Add New Comment

Annie ,   Australia	11/10/04
It was interesting to read an article which reflects a growing uneasiness that I have felt for some time but have not been able to put my finger on. I am an adminsitrator of a community based mediation program which is also part of a government agency and which takes court referred matters. In the past few years there have been enormous pressures on our service to expand the geographical coverage of the service but at the same time to reduce costs. The cost reductions have been in staff involved in pre-mediation and mediator supervision and in dedicated spaces away from courts in which to conduct mediation sessions. The effect of all of this has been to take court referrals rather than the more expensive option of working within communities to help resolve disputes before they even get to court. It also means we often mediate within the court precincts often resulting in client confusion about the role and the process of mediation. It would seem that we have become the sausage factory we originally set out not to be. Add New Comment

r.d.  ,   Portland OR	rbenjamin@mediate.com      08/04/04
***** (this is a five star article)
This article should be required reading for any mediators who practice within the gravitational pull of a court system. I continue to be dismayed with the increasing number of mediators who consider their clients to be either the referring court or the attorneys who have directed the matter to them. With the continuing institutionalization and legalization of mediaton---mediaton being seen as little more than an adjunct service of the court---there is grave danger that the core principles of mediation will be lost in the near future. A few years back, I considered some of my concerns that Krivis documents as having been unfortunately realized, in a piece titled, "Mediation as a Subversive Activity" (www.mediate.com). Then, I talked about be careful of what you wish for....Courts have given mediation a great boost and legitimized the process; however, courts might also be the source of mediocritizing and diluting mediation beyond recognition. It is already happening. In some places where mediation is mandated----Florida, Texas, Indiana, and California---mediation is beginning to acquire a tarnished image as just another hoop to be jumped through before trial and not to be taken seriously. Much as Krivis points out. I'm not sure of the answers. At this point, however, I am disturbed that so few appear to be aware of the issues Krivis so aptly notes. Add New Comment

Lester H. Berkson ,   Zephyr Cove Nv	06/06/04
As a settlement judge mediator for the nevada Supreme court I handle court mandated mediations on civil cases appealed to the Nv Sp Ct. Since the start of the program over 7 years ago about 56 per cent of the mandated cases have settled. I enjoyed your article but feel court mandated mediation is still in its infancy and is necessary to bring realisim to the individual party defendants and Plaintiffs. Add New Comment

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