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In Search of a Profession: Notes From The Frontier

by Barry Simon
February 2003

The following article is adapted from a speech given to the Colorado Conference of Mediators in September, 2002.

Barry Simon
Both within and outside the dispute resolution community, the general impression is that mediation and the law are attached at the hip. And, in truth, they are and have been since the “modern age” of mediation was kicked off by the Pound Conference in 1976.

Two hundred legal experts came together at that gathering entitled “The Conference On the Causes of Popular Dissatisfaction with the Administration of Justice.” Their mission was to find some solutions to the growing dissatisfaction with a justice system that had become overburdened with law suits. Therefore, it is not surprising that the answer they came up with would be profoundly rooted in the justice system. Which makes it even less of a mystery why the New York Times has dubbed mediation “a branch of the legal profession.” In short, mediation and litigation are inexorably bound.

Since the Pound Conference, mediation organizations and their members have given countless hours in volunteer support to court panels. These panels provide an on-going opportunity to practice and sharpen one’s abilities, offer networking with the legal community as well as a place to showcase one’s skills to possible future clients (attorneys), and hold out the hope of mediations-for-a-fee. However, a thriving fee-for-service mediation profession has not resulted.

Meanwhile, during the same period an equal amount of time has not been given to developing the market outside the courthouse. So while the legal profession has become well aware of mediation in a litigated setting, the general public, the business sector, and community organizations are relatively still in the dark. Except in rare instances, they have no idea how dispute resolution might be used in their non-litigated disputes (or as a friend describes it “the front end of the dispute cycle“). And because mediation is relatively new, there are almost no role models in the popular media demonstrating how it can be utilized in daily living. Naturally, a thriving fee-for-service mediation profession has never taken root in this undeveloped soil. (Conversely, because of the popularity of daily “judge shows,” the court system is flooded with people representing themselves and whose lack of knowledge of arcane legal ritual has created a huge administration problem for the courts.)

There is some good news, however. Scattered pockets of fee-for-service do exist. But this has occurred in such a haphazard fashion, the result is less a clear cut path to a career than a maze that often leads to frustration for the professional practitioner. Still, every year more people decide to pursue a career in conflict resolution only to come to a point where they wonder if a future exists in their chosen field. Many - too many - decide to move on. As a result, excellent practitioners are lost. Others continue, most often as volunteers, in order to keep their skills sharpened but rely on another occupation to make a living. Only the rare few actually find a paying career.

A quarter of a century after the Pound Conference, this is a very discouraging picture for anyone contemplating a career in dispute resolution.

CREATING A PROFESSION

Mediation is definitely thriving as a field of study. You can even get an advanced degree in dispute resolution. Also, there is no shortage of programs for which you can volunteer and in doing so practice your craft. Some programs even allow mediators to earn a little cash. However, despite the few exceptions, the overwhelming truth is that in 2003, over twenty-five years after the Pound Conference, there is no distinct profession in which study and practice produce a practitioner who can earn a living as do doctors, therapists, attorneys, hair stylists, plumbers, nail stylists, car mechanics, mail deliverers, house painters, etc.

This is not because there cannot be a profession. It is just that no one has given any time to developing it. Instead, our time has been spent primarily supporting the courts’ mediation programs. As a result, we view mediation through a litigation framework and think of disputes almost exclusively as rights based grievances either already in the court system or on their way to being litigated. People based grievances - disputes based on one person’s behavior toward another, some of which could turn into a rights based complaint but much of it will not - have gotten short shrift except in under funded community programs. Unfortunately, like many court programs, these community mediation centers require neutrals to also work for free.

But none of this is inevitable. It is a choice we have made in the past which has gathered an air of inevitability about it. However, we can step back and look at where we are and how we got here and decide to take a different road, one that leads away from the litigated view of disputes to a more inclusive viewpoint. In this process, we can choose to create a real profession.

This process begins by consciously shedding the idea that we have been promoting to ourselves and the outside world for the past two plus decades, namely that resolving conflicts is solely the work of the justice system. Rather, it is the judiciary that has successfully turned to the dispute resolution community to provide an alternative to litigated justice. In other words:

Conflict Management is its own unique approach to dispute resolution, separate from but equal to the justice system.

Just because mediation takes place within the justice system does not make it a branch of that system. In truth, it is an alternative, the offering of a choice between two different approaches to resolving conflict. In other words, mediation does not grow out of the law. At its heart, it is an alternative to the law, a process by which the parties, not a judge or jury, determine what is just, fair and acceptable.

Conflict Management is its own unique approach to dispute resolution, separate from but equal to the justice system.

This is the mantra, the creed, the doctrine, the central article of faith for our new profession. Before you continue on in this article, I invite you to repeat this out loud at least five times:

Conflict Management is its own unique approach to dispute resolution, separate from but equal to the justice system.

Commit to repeating this at least once a day until you have completely freed yourself of the litigation view of mediation. If, however, you do not believe this, then Conflict Management does not have a snowball’s chance in hell of ever becoming its own profession. It will always be the poor servant of the judiciary.

RECONCEPTUALIZING OUR PROFESSION

Here, then, are the three first, basic steps I believe we must take in order to reconceptualize our field and practice, transforming them into the unique and valuable profession called Conflict Management:

STEP ONE: ENLARGE OUR VISION AND EXPAND OUR SCOPE

According to a 1999 national survey conducted by the National Center of State Courts, 68% of the respondents felt that bringing a case to court is unaffordable. But does this mean that these disputes go away? Of course not. Instead, they fester.

The dispute landscape outside the courthouse is much broader and deeper than the one represented by litigated and pre-litigation cases. Besides those disputes that do not come to court, there are many more that would never be litigated. These involve co-workers, management, spouses, kids on the playground, families in and out of crisis, etc. In short, any interaction between two or more people that results in an on-going dispute is an opportunity to practice dispute resolution.

However, turning this opportunity into an actual paying market will be a challenge. A 1992 survey conducted by the National Institute of Dispute Resolution found that when asked how they resolve their disputes, 45% of the respondents said they either avoid or deny them. Worse, when asked what they think of when hearing the words “dispute resolution” and “conflict management,” only 2% said mediation. Thus, if the public thinks about their disputes at all, they generally won’t hire an attorney and would practically never turn to mediation.

Yet, when litigation, arbitration and mediation were described, only 34% of the respondents said they would choose litigation to resolve their disputes. Meanwhile, a whopping 62% chose mediation. So, the disputes are out there. When the market is informed, they overwhelmingly choose mediation. But before this market will use our “cleanser,” it has to admit it has a stain. So, we have to develop effective marketing messages that, first, overcome denial of conflict. Then we have to demonstrate how our “cleanser” is more effective that the court’s.

Besides enlarging our vision of the dispute landscape, we also have to expand the scope of what we provide. Since mediation grew from the needs of the justice system, the image of a neutral is someone who sits at a table with disputants, helping them come to a mutually satisfying resolution. But in truth, we offer a lot more than this. Besides, not every dispute needs a mediation session.

We can coach one side of a dispute, helping the person to create options and determine best interests. We can facilitate a meeting of an organization that is having internal disputes or between groups that are locked in a conflict. We can help an organization develop an on-going program in which conflicts are being addressed. We can also teach basic dispute resolution skills, write conflict resolution policies, author articles for the local and national press, develop and analyze theories of dispute resolution, and act in the role of a conflict resolution adviser or consultant. In short, we are many things depending on the situation.

We do more than just mediate and our profession must express this. We are conflict managers and our profession is conflict management.

STEP TWO: BANISH MANDATED VOLUNTEERISM AND REPLACE IT WITH MANDATORY COMPENSATION.

Let me state this as unambiguously as I can: if you give it away for free, why would anyone pay for it? And our community has been giving it away for over two decades. This doesn’t create a profession. It makes for a bad habit.

Let’s put pencil to paper and see just how much we are giving away in dollars and cents. In 2001, 1000 plus volunteer neutrals in the Los Angeles Superior Court, California’s largest court, conducted 11,414 mediations. At $150 per hour for three hours of work, this was $5 million worth of billable hours that were given away for free. This doesn’t include, however, the time and money spent on convening sessions, completing forms and postage, all of which must be covered by the volunteers.

In New Mexico, the pro bono mediators facilitated approximately 900 cases in 2001. That’s $405,000 worth of free work. In Oklahoma, 350 volunteer mediators statewide conducted 2100 mediations. That’s $945,000. In New York State, the 2100 volunteer mediators conducted approximately 30,000 mediations in 2001. That’s $13.5 million worth of free mediation services! Add these numbers up and you get just under $20 million ($19, 850,000) that our community gave away for free to the courts in just three states and one city during 2001.

Meanwhile, community mediation programs nationwide are built on the idea that mediators work for free. According to the National Association for Community Mediation, today there are 550 community mediation programs with collectively 19,500 active volunteer mediators who yearly mediate 45,500 disputes. At $150 per hour for an average 2 hour session, that’s over $13.6 million per year of free mediation.

Add it all up and we gave away over $33 million worth of free labor in 2001 to the above programs alone. Is this how we build a profession? If so, why hasn’t one happened yet because this has been going on for several decades?

Then the cry goes up: “But there’s no money in our budget to pay mediators let alone fund programs!” And, in truth, there isn’t. But why? Not because money isn’t there. Politicians always find money to pay for their favorite projects. What is lacking is the political will to adequately fund conflict management programs.

How infinitesimal is the political will to compensate us? According to a mediator in Florida, the Florida Commission on Human Relations funded compensation through a grant, but somehow it was consumed by “administrative costs” and never trickled down to the mediators. And what did the mediators in Florida do? Nothing…except continue to volunteer. Sometimes we are our own worst enemy.

Volunteerism is the high price most of us pay in order to practice our skills and the cost to our profession is exceptionally steep. However, if we want to develop a profession in which we can earn a living, we must banish mandated volunteerism altogether and replace it with mandatory compensation. Mandated by whom? By us, because no one else is going to demand it for us.

We bring value to the table. For this value, we must be sufficiently compensated. To demand less stifles the development of our profession and publicly demeans us.

STEP THREE: CREATE A CREDENTIALING PROCESS

A credentialing process is indispensable in establishing our credibility as practitioners of Conflict Management for the following four reasons:

1) Without a standardized credentialing process, the public has no way to judge expertise and capabilities when choosing a neutral. Also, they have no formal body through which complaints can be addressed.

2) Conversely, because there is no standardized credentialing process, a conflict management practitioner cannot establish credibility and demonstrate mastery of core skills and knowledge.

3) Because there is no credentialing process, variable and artificial standards, such as university degrees and substantive knowledge, have been adopted on a indiscriminate basis all across the United States. For example, in New Mexico, to handle a custody mediation for the court, you need a masters degree in the mental health profession. In California, you must have a masters degree in therapy or jurisprudence. In Colorado, you don’t need any degree but for practical matters, those with law or therapy backgrounds get most of the work. In private practice in any of these states, however, you can handle custody disputes without a degree in any of these disciplines.

4) This reliance on irrelevant standards has created a false impression of what constitutes practitioner competency while setting arbitrary barriers to excellent practitioners who do not meet these artificial criteria. By relying on degrees or substantive knowledge, the real skills a conflict management practitioner are pushed aside, supporting the notion that conflict management is like the legal profession. Knowledge about the law governing particular kinds of disputes or knowledge about the subject of the dispute becomes more important than one‘s ability to mediate the dispute.

CONCLUSION

The time has come for us to liberate ourselves from the confining box into which our quarter century association with the justice system has put us. To do so we must start with a revolution inside ourselves, by accepting and acknowledging that the profession of conflict management is its own distinct profession, separate from but equal to the justice system.

Then, we must enlarge our vision, encompassing ALL disputes, not just litigated and pre-litigation cases. We also must expand the scope of services we offer beyond the tradition of sitting at a table with disputants. Next, we must banish mandated volunteerism and replace it with mandatory compensation. The word “free” should never again pass our lips. And finally, we must create a credentialing process that brings us credibility, assures the public of quality and frees us from the degrees and substantive knowledge that have filled the void and distorted the perception of who we are and what we do.

We possess the ability to bring something to the world that is in short supply - peace. But we cannot fulfill this mission if we allow ourselves to be defined by others and restricted by our own limited vision. We must choose to take control of our destiny and fashion a future that encompasses everything we have to offer. Only then will we create the profession we rightly deserve.

Biography


Barry Simon is a conflict manager in private practice who has conducted mediations concerning community issues, divorce, same gender relationship dissolutions and workplace conflicts as well as facilitating meetings, coaching and training people in basic dispute resolution skills.

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Website: www.resolvenow.com

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