Comments: The Mediation Industry: 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

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.

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.


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.”