The Mediation Industry: Our Time Has Come

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Could the use of mediation be increasing during our difficult times? The answer by my direct day-to-day experience is absolutely “yes.” Mediation has proven itself to be "better, faster and cheaper" and those marketplace qualities have come to matter more than ever.

As a bit of background, it is worth noting that, as the mediation field got seriously going in the late 70’s and early 80’s, there was some sense that mediation might be a unified field. This was based on the (perhaps accurate) assessment that a capable mediator can mediate agreement in a wide variety of areas. True or not, this is not how the “mediation industry” has evolved or is evolving. Rather, for many practical reasons, there has been and is a current “balkanization” of the mediation field into dozens of practice areas, each with its own culture, organizations, qualifications, standards, market, etc.

In fact, the mosaic of mediation that has evolved and is evolving is so broad and differentiated in its so many applications that “mediation” as a whole simply can not be managed as any single thing. Mediation is as much social movement as professional development, as much a shift in culture as a dispute resolution option. Mediation has rapidly become, with precious little fanfare, the ocean we swim in and the air we breathe. It would now be hard to imagine a world where it wasn't.

Our growth is not based upon people wanting to engage conflict. People hate conflict. Our growth is based upon mediation, despite its flaws, being widely and consistently viewed as the best alternative process available. If people can not resolve things themselves, it simply makes sense to have a capable helper step in to assist rather than subsidizing a small war. Critical in all this is the continuing recognition of the essential voluntary, confidential and decision-making control qualities of mediation that are expected in all contexts. This is what binds us: our joint commitment to voluntary, safe and capable participant controlled decision-making.

I am rather stunned by mediation’s flexibility and adaptability. One of the reasons for this is that mediation is “scalable.” For example, we can provide 20 or 2 hours of mediation or offer some portion of it online, whereas you just don’t have that kind of flexibility with administrative and court due process hearings. Mediation’s flexibility, organically based on emerging opportunities and our ever-hungry readiness, is leading to mediation becoming the expected way we resolve disputes. Today, what raises eyebrows isn't the provision of mediation, it is when mediation isn't offered as an option.

Take, for example, the current foreclosure crisis. What is the governmental response? In one form or another, it is to stimulate the renegotiation of at-risk mortgages. And what is the vehicle for all of this? Is it the courts? Is it due process hearings? No, in state after state, and soon for the federal government as well, there has been a systemic reliance on mediation to get the job done. See the ongoing headlines at www.mediate.com/Today to get a sense of what I am talking about.

Mediation has also been relied upon for the processing of claims for mass disasters like hurricanes Katrina and Rita and is now standard fare in crisis planning. Why? Because mediation resolves 70-80% of situations, does this efficiently and voluntarily, more affordably and faster, and more durably than any traditional due process alternative. Publicly sanctioned mediation is the way one gets the other side to sit down to the table (and increasingly, we will see that this “table” may be our own computer desk!)

Increasingly, we will also see mediation applications, such as foreclosures and hurricane claims, will come to include “good faith” negotiating requirements, if only for financial, insurance, governmental or other institutions. As government comes to rely on mediation more and more to get overwhelming jobs done, we will need to think how we can play our valuable role without becoming a witness on the issue of good faith participation.

What is happening, especially under the current economic stress conditions, is that things are “shaking out” and our economy and society simply can not afford to process disputes in the old (inefficient) due process ways. Sure, we need due process protections in the background, but what sane person is going to refuse a capable, early opportunity to put things right, especially if they can do safely, affordably and conveniently, if not at their computer in their pajamas.

I could go on and on about the growth indicators I see, including traffic to Mediate.com (see www.mediate.como/visits) which tell me that, rather then the mediation industry suffering during these times, I am convinced THIS IS OUR TIME. (“our” being the Balkanized States of Mediation).

One point worth noting, with the Obama administration’s commitment to diplomacy and collaboration (I know some will disagree), there is a meaningfully different social, governmental and cultural context for mediation now. For me, it is the difference between night and day. I don’t want to belabor this point knowing that I offend some who disagree, but, strategically, for the mediation industry, the change in governmental context is huge.

Other “meta” changes are taking place in the way we resolve disputes. Sure there is often a good measure of face to face discussion, but not always. We are increasingly seeing the use of the internet for purpose of filing, discovery, motions, online discussion, web resource centers, ratings of mediators, certification . . . The internet offers our industry, and each of us the opportunity to assist people to be better informed, to be better in making conflict resolution choices and to more easily access mediation services.

There is, for example, a current pilot program to resolve divorce issues online in the Netherlands. AAA recently announced its “under $10,000 dispute” online dispute resolution program. E bay resolves virtually all of its disputes online. With the rise in gas prices, I am getting calls from places like North Dakota and British Columbia about online dispute resolution for programs that simply can not afford to drive to provide services. So, as our communication capacities steadily improve and costs of getting together ever elevate, it is certain that there will be increased use of the internet in dispute resolution.

The gateway for dispute resolution is already far more "Google" than "the courts". You can quote me on that!

And with our economic pressures, at the micro practice level, we are also seeing mediators and mediation programs “wake up” and realize that they will not survive our current economic plight with “business as usual.” And so, as practitioners and organizations are now wisely retooling to better focus and, bless the lord, to elevate their web presence and internet capacities.

I daily operate at the intersection of all things mediation and all things internet. I have “my finger” (really mouse pointer) on a number of daily pulses – be that web site traffic, sales, directory utilization, phone calls, emailed articles, printed articles, comments, etc. So, what I am saying is that I really do not think it is going to be doom and gloom for the mediation industry over the next couple of years. In fact, I see the exact opposite. I am convinced that the economic pressures of these times mean that mediation’s “time has come.” Yes, we are now perhaps the Balkanized States of Mediation, but ever-expanding opportunities are waiting on every front of mediation development.

The potential for refined application of valuable mediation processes over the next years is massive. We help people get problems resolved and we are wise to be ever-ready to do that faster, better and cheaper. The word is out. A silent revolution has taken place. Policy makers don’t even think twice now in favoring, in relying upon mediation. Our culture has changed. We have changed. Our time has come.

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Geoff Sharp,   Wellington NZ	mediate@geoffsharp.co.nz      03/07/09
Hey Jim, nice piece. We need advance scouts like you, out there in the front, picking the right track for us all to take Add New Comment

Martin Rosenfeld,   Fair Lawn NJ	Rosenfeld@Juno.Com      03/04/09
Thank you
It was so nice to see an informative, upbeat article on mediation and its reach. It makes us all proud to be mediators. I have favorably cited this article as my weekly contribution to my blog.(www.NJMediator.Wordpress.Com). Nice work, Jim. Your piece was interesting in style and upbeat in content. Add New Comment

Jim Melamed,   Eugene OR	02/27/09
You make me seem so reasonable
Robert, Thanks for your thoughtful comments. I would offer that people have multiple capacities, to fight, to flee or to figure. We are advantaged as a society and world to the extent that there are social expectations and supportive, yes rational, systems of mediation opportunity available. That we rationally provide mediation opportunities does not mean that we necessarily expect folks to behave rationally in the mediation process. People will take advantage of the best dispute resolution opportunity they perceive available. Too often this is no opportunity. Stuffing, denying or fleeing. All I am suggesting is that there has been an elevation, as a matter of conscious and semi-conscious system design, to provide folks with mediation opportunities as a matter of today's national and, increasingly, global culture. I see this as good, very good, for many reasons. I especially see our being able to offer a measure of helpful mediation as a positive, particularly when such services have not historically been offered. Quite often the process for comparison is not the mythical due process legal case that might go to the supreme court but, rather, no meaningful and affordable option being available. Compared to nothing, even imperfect mediation looks pretty darn good. Surely, at the "micro" level, once we are "in the room" with folks, be that physically or through additional communication capacities, we obviously need to pay as much attention to their emotion as rational and other drivers of the conflict. We need to match up with folks emotionally and give them the experience of being fully heard if we are to work effectively with them. But in terms of growing our industry and designing systems at the macro level, I think we are well advised to keep things on the rational side of things. I hesitate to engage in system design by gut. Add New Comment

r.d. ,   Portland OR	02/27/09
Ever the rationalist
Ever the rationalist: "Faster, cheaper, better." Before you herald the coming of the fifth major paradigm shift of human history (earth is round, earth revolves around sun, theory of relativity and quantum mechanics, evolutionary theory), please note that most people still hate to negotiate, don't know how and think people who do are sleazy. I know you are convinced this will all change in 4 years when the Federal Budget is balanced and the Deficit eliminated, and "Peace will Rule the World," but while there are some hopeful signs, the idea of progress is just that---a idea. There is no reason to believe that evolution is moving us in a positive direction---even with your wonderment at the miracle of the computer age. In fact, there is reason to believe that there is as much or more misinformation, confusion, and conflict as a result of digital communication. This is an unconventionally non rational manifestation of the revenge effect, otherwise known as an unintended consequence. Finally, the small signs do not a field make, or as you like to say, a "mediation industry." Whether one exists or is coming about is still very much open to question. The many who call who practice what some would call variants of mediation in different contexts, e.g., workplace, divorce, personal injury, public policy/environmental, and diplomacy/foreign relations, occasionally use of the word "mediation," often with very different meanings. At this point, mediation has so widely used to describe so many approaches that it's meaning meaningless and sometimes even vacuous. There is no coherent mediation industry; there may be different ways of doing things now than years ago, and even then, not all for the better. "Collaborative lawyers," for example, claim to be mediative. They do what used to be known as common sense legal practice. Now branded as "collaborative law," for marketing purposes, it appears to have excused participating professionals from learning anything new. All they need do is sign a contract asserting that they will pretend to be nice. More troubling, mediation, as you might note, is increasingly be used as a form of 2nd class justice; to move cases along in courts and shut up parents who complain that their special needs children aren't getting the help they need from schools in IEP mediations, or in the Post Office, to keep complaining workers quiet and make them think things will change by endlessly talking. While I admit that there is some positive aspect to the current focus on negotiating conflict, I am hesitant to be too optimistic. I take my lead from a quote from an artist I highly regard, William Kentridge, whose work is strongly influenced by having grown up during South Africa's Apartheid regime: “Mine is an art (and a politics) in which optimism is kept in check and nihilism kept at bay.” Add New Comment

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