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Special thanks to Elisa Sneirson for her assistance with this article
The purpose of this article is to recount some of mediation's past, consider its current state, and offer a few thoughts on development trends for the future, asking the question whether we are doing "justice" to the "mediation movement" we have created. Unfortunately, one can rather easily argue that mediation's special qualities--its voluntariness, safety, self-determination and capacity--have lost a measure of their shine. In fact, it is this author's suggestion that the greatest threat to mediation is likely its successful institutionalization. At stake is whether mediation is a path to best solutions, or merely to barely sufficient ones.
The history of mediation has been well described in the leading texts of our field. See, for example, Jay Folberg and Alison Taylor's Mediation, An Alternative to Litigation, and Chris Moore's The Mediation Process. Historically, the essence of mediation--a presumably wise and trusted "third party" assisting others to reach agreement--has deep roots in many cultures. For our purposes, I would like to fast-forward to the period after the Vietnam War, when the modern mediation movement "took off."
While there was a good deal of mediation development in the labor-management sphere before the 60's (primarily through the Federal Mediation & Conciliation Services) and also with regard to transportation (National Mediation Board), there was very little mediation in the private sector, courts or agencies prior to 1970. Following the activism and divisiveness of the Vietnam War, a number of talented and motivated social activists asked the important question: "Knowing what we are against (war), what are we for?" While there were many answers to this question, a theme of "participatory democracy" emerged in the form of neighborhood justice centers and the community mediation movement. The San Francisco Community Mediation Board panel model developed by Ray Shonholtz grew during these early times as an inspiration to the formation of community mediation programs. The National Association for Community Mediation (NAFCM) was founded during this period as a technical assistance center for the development of community mediation. On other fronts, the Conciliation Courts movement, over time, morphed itself into "court-connected family mediation," now present in virtually every state of the union. The efforts of John Haynes, OJ Coogler, Steve Erickson, Joan Kelly and others led to the development of the Academy of Family Mediators and the growth of private sector divorce and family mediation. SPIDR, the Society of Professionals in Dispute Resolution, began as primarily a labor-management arbitration and mediation group, and quickly expanded to consider the full range of court, agency and public policy dispute resolution. NAME (the National Association for Mediation in Education) spurred widespread development of peer mediation programs in the schools, later succeeded by CRENet, the "Conflict Resolution Education Network." It was also during this time that Frank Sander introduced the "Multi-door Courthouse" concept of courts offering a broad range of dispute resolution opportunities beyond litigation.
All combined, I have come to call this 25-year period of development, from perhaps 1970 to 1995, mediation's "silent revolution." Mediation grew rapidly during this period with little attention or fanfare. Despite substantial challenges in terms of funding and public education, and to the satisfying surprise of mediation advocates, mediation became rather remarkably institutionalized during this period and since. Why? The answer is easy: common sense! It simply makes sense as both a matter of public policy and individual choice to, if one can not work things out directly, sit down with a trustworthy mediator to try to figure things out before waging World War III in the courts or an administrative due process hearing. The result is that state and federal courts and agencies across the country now routinely ask disputants to mediate prior to being given access to a judge or hearings officer, absent emergency or abusive circumstances. Mediation has become a critical component of judicial and administrative docket management; without it, one wonders how we would manage our ever-expanding contested case load.
Unfortunately, this "silent revolution", of mediation being so thoroughly integrated into our courts, agencies and society, has not been without its costs and risks. Primary among these challenges are the quality of mediation services being offered. Without in the moment offering answers, let me list what I see as some of the greatest challenges mediation faces with such broad acceptance and institutionalization:
My answer was that I suggested a new technique: that the state facilitators go on strike. I asked the question, "What will you do when they say only 30 minutes next year, and only 20 minutes the next? Do we as mediators have no boundaries? Are we simply pawns in the ‘administration of justice'?" How can we tolerate this stupidity and be true to our roots and to the importance and potential of mediation in our society and the world? We are corrupting the very meaning of mediation. Mediation, with so much initial promise of helping participants reach the most satisfactory results following most capable discussion, has sadly descended into a docket management device. If we do not speak up to defend quality mediation, who will?
How did we become so dumb? I am quite convinced that the driving force here for "single-sit crisis mediation" is the difficulty of scheduling the mediator, lawyers, parties, etc. Because of the challenge of "finding a free day" for the mediation and the expectation that it will be completed, one way or the other, in a single day, we rob participants in the system of the ability to "sleep on things," to gain additional information, to consider additional possibilities--in short, to most capably address the issues. Certainly there is a part of us all that wants to resolve mediated disputes at the earliest possible time, but to assume that the only model available is a single-sit crisis mediation is to make a huge mistake. The result again is a tendency toward barely sufficient dialogue and barely sufficient solutions, rather than most capable dialogue and most capable solutions. In terms of moving toward resolution in individual cases, I am quite convinced that the greatest movement does not take place around the table, or even in the mediation setting, but commonly as participants "sleep on things" (or more accurately, are not able to sleep . . .)
By assuming that a result, if it is to be achieved, will be achieved in a single day, we impose an overly pressurized environment on participants. There is nothing wrong with meeting a second or third time or continuing the mediation online or by phone. Critically, a second or third meeting gives us time between meetings to creatively work our magic with strategic phone calls, emails, or separate meetings. For us to impose a single-day "hearings mentality" on mediation is to miss the essential opportunity that mediation offers--one of healing, genuine resolution and most capable solutions. Our unconscious hearings mentality, frequently resulting in lawyer domination of the discussion, robs participants of their opportunity for genuine resolution. The way it is, we can expect that there will be an offer at the end of the day that we will either need to "take" or "leave." Crisis mediation is not negotiation at its best, but too often an overly rational and hollow substitute for true resolution. I surely do not have a problem with single-sit crisis mediation being a service in the marketplace. What I fear is that this approach has become the marketplace.
Moving Beyond Institutionalized Mediation Mediocrity
The harmonizing theme of these observations and many others that can be made, such as the virtual lack of research as to what really works best in mediation, is that the mediation process, which offers so much potential in terms of most capable problem solving, is being denied its opportunity to best develop and serve our country and the world. Following the broad acceptance and institutionalization of mediation, we have retreated to old habits, trusting the judicial and legal gatekeepers to "carry the mediation ball." While the acceptance and adoption of mediation by the courts and agencies is at one level to be celebrated, at another, it is our greatest challenge. The resulting co-option and acceptance of mediocre processes, resources and results is a threat to mediation. I wish I could say that things are getting better in this regard, but they are not. They are getting worse. And so, just as we sounded the "battle cry" three decades ago that "there is a better way," we need to do this again, and now. And if not us, who? The fate of mediation in our society and the world hangs in the balance.
Jim Melamed co-founded Mediate.com in 1996 and has served as CEO of Mediate.com ever since. Mediate.com received the American Bar Association's 2010 Institutional Problem Solver Award.
Before Mediate.com, Jim founded The Mediation Center in Eugene, Oregon in 1983 and served as Executive Director of the Academy of Family Mediators (AFM) from 1987 to 1993. Jim was also the first President and Executive Director of the Oregon Mediation Association (1985-86).
Jim has received the following awards:
Jim's undergraduate degree is in in psychology from Stanford University and his law degree is from the University of Oregon.
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|Debra , Portland,Beaverton OR||05/08/08|
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