The future of policing must incorporate mediation. No other profession places its practitioners more in the middle of challenging situations; police officers are regularly expected to make difficult conversations work on the spot.
It is daunting, however, our role to hazard predictions about the next thirty years of conflict theory.
The challenge we face is how to be adaptable, but still focused and effective. To meet this challenge, we need to remain clear about our fundamental purpose, to keep working on refining our skills and enhancing the range of approaches we can take to achieving those purposes, to commit to diversifying our field, and to maintain a clear hold on our values and ethical principles.
The single most neglected truism in mediation, whether virtual or in person, is that it does not happen without bodies. We do not mediate with beings in other realms (unless we attach a very different meaning to mediation than is contemplated in this collection of articles on the future of our craft). Thus involving those with current corporeal substance, we mobilize to engage and reach toward understanding while literally standing our ground.
Bush and Folger recently contributed an article to this “Mediation Futures Project” series that advocates strongly for “Refocusing on Party Self-Determination” but also suggests that mediators should conform to orthodox Transformative Mediation practices. This partial rejoinder, while acknowledging the important contribution of the TM focus on self-determination to mediation practice, also recognizes the value of other mediation practices.
What's the down side of mediator self promotion over promotion of the mediation process? I think that the future of mediation could be put at-risk, or minimally compromised, by those in the profession who consciously, or unconsciously, leverage a belief system of "who knows best."
For some reason, beyond my understanding, the decades old debate continues. How should mediation be defined? The better question is, “How can the practice be applied?” And herein is the genesis of the divergent paths upon which mediation has developed in the last thirty years.
I would submit that the next quantum leap for the theory and practice of mediation is to detach from the concept of neutrality as a core element of mediation practice. I propose to reboot the profession of mediation by championing the proposition that mediators are not neutrals. That they bring their own personal history and professional expertise to the process of assisting parties who are in dispute.
Although I am pretty good at envisioning the future, I don’t really have any grandiose images of the future of mediation. Rather, I have some cautionary tales and a few suggestions for how we might impact the future and avoid the pitfalls of insularity.
Mediation has proven to me that adversarial litigation is an archaic way to resolve many of our conflicts. I think it's logical that we the best for the future is to use mediation to resolve the political deadlocks that are plaguing our societies, transforming democracy from the divisive popularity contest that it has become to the participatory civic engagement that so many have fought for.
Robert Benjamin recently interviewed Kenneth Feinberg for Mediate.com about his career over the last 30 years. He has managed the settlement of complex and difficult claims in the wake of some of the largest catastrophic events we have faced as a society and has pioneered an approach that has altered, not only the legal landscape, but also our culture. Read the interview in this article.
The Future of mediation hangs on several factors. Probably the most important is Trust. If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes.
This articles examines the future of mediation as a tool for global improvement. There are a variety of venues where mediation might prove to be the only answer for entrenched conflict.
Noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence.
After toiling in this field for 30 years, I have the strong sense that the patina has worn off and the institutions we have created are fraying and unsustainable in their current manifestations. I’m in good company in this perception; however, that doesn’t mean there is no future for mediation.
Mediation has come a long way in the last 4 decades since it was endorsed, but this article examines all of the areas in which mediation still needs to grow.
The current complexity of our problems, at least in the U.S., is close to the point of overwhelm; for the individuals involved, for the governments that rule them, for the courts that adjudicate them, for the economic systems that support them, and because of the corrupted values that guide them.
A quarter century ago many believed we were experiencing a revolution in the way conflict was managed. Nowhere was this more noticeable than in the construction sector, the primary focus of my practice as an advocate and dispute resolution professional.
Our own article on the future of mediation focuses on emerging trends and untapped potential. In addition we decided to write a response to “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination” which was written by the esteemed Robert A. Baruch Bush, and Joseph P. Folger for Mediate.com in November 2014. We are not submitting this rebuttal in an attempt to change any one’s mind. Instead, as mediators we are generally fascinated with hearing, and telling, the rest of the story, so here it is…..
Doug Noll discusses the future of litigated and non-litigated cases.
Given the creativity of ADR practitioners and scholars, the best of ADR will continue to grow and expand to new areas of practice, and unheard of new ADR practice will emerge.
I have practiced ADR since 1992. I look back fondly and forward enthusiastically with great hope. In thinking about “what from our past has worked best and should be brought forward and emphasized,” I decided to review two law review articles I wrote early on in my career. What follows is a summary of what I thought then. It will be followed by summaries of two articles about what I think currently. This article will then conclude with my half-formed or mal-formed thoughts about the future.
Seismic tremors emanating from London's Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution's customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.
Frank Sander reflects on his concerns within the field, which include the tension of quality vs. quantity of the practice, the lack of studies of cost effectiveness, disappointments with the court system fees, and the difficulty of getting more young people/apprentices into the field. However, he's optimistic about the future of mediation.
The purchaser of any service has to know in advance whether the provider can deliver high quality. If the purchaser happens to be a lawyer, and if the provider will be a mediator, how should the lawyer evaluate the potential provider?
I've heard a number of evangelists of the mediation world talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court.
ADR is sleepwalking globally. It needs to be shaken out of its slumber. There is a way to do it. A truly Global Pound Conference!
Mediation in our country is no more a toddler. It has started to have an identity and it is time that we devise a cohesive plan for the growth of mediation in a manner that would allow cohesion among the stakeholders in the process. Changing the mind set of all concerned is now essential to take stock of where mediation is heading and what is to be done.
One must demonstrate training, skills or both in order to be listed on various court-annexed mediation panels. At the same time, however, many of those courts don’t mind in the least if parties go to a mediator of their choosing irrespective of whether that person is listed on the court-maintained panel.
Whilst acknowledging that ODR assumes two roles as a competing and complementing system to state courts, our focus in the following pages shall be exclusively directed to the complementary role of ODR, and to the development of court annexed ODR schemes. Accordingly, we shall commence by providing an overview of how states have started to incorporate ODR into the legal process, and then proceed to shed light on possible future paths for state-run ODR systems.
In this chapter, we analyze the interaction between traditional concepts of justice and fields in which Online Dispute Resolution (ODR) has flourished and is burgeoning. We then explore the ways in which justice as traditionally conceptualized is adapting to the digital environment, and ask the question: Are traditional notions of justice relevant to contemporary online interactions between individuals, businesses, and governments?
The budget cuts to the court system have perhaps been felt more severely in California. In March, California Chief Justice Tani Cantil-Sakauye lamented in a speech to the state legislature, “our judicial branch budget has been cut greater and deeper than any other court in the United States.”
This article discusses the Good, the Bad, and the Ugly of mediation. This is an edited version of the Opening Plenary Keynote Speech at the Inaugural 5C's ADR Conference held at the Supreme Court of Singapore on October 4-5 2012.
I recently attended training in ‘telephone mediation’ delivered by two members of Mer Majesty’s Court Service (HMCS) Small Claims Mediation team. Over 99% of their mediations are conducted over the telephone in an hour or less.
Congratulations to my fellow SCMA board member, and new president Barbara Brown, for pulling off a very successful SCMA fall conference at Pepperdine this weekend!
Where could mediation be in 10 years time? Can stakeholders realistically exert a significant positive influence on the field’s future progression?
William Hartgering gives his thoughts on what prospective mediators should know and the future of alternative dispute resolution,
Kimberly Kovach shares her hopes for the future. These include having ADR taught in schools so people can build a skillset, shifting the resistance to mediation into have people collaborate more.
Nina Meierding describes the future of mediation as continuing with much debate and outside influences, but sees the principles and theories expanding throughout society. She also talks about the personal fulfullment she gets from helping others create an agreement.
Carrie Menkel-Meadow speaks on megatrends involving the law at the Keystone Conference, October, 2006.
In a recent blog, I mentioned that the Southern California Mediation Association (“SCMA”) will be putting on its annual conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. Entitled “M3 – The Next Generation,” (see,2009scmaconference923095) its theme is the increasing use of mediation in our society. In 1976, Professor Sander espoused the novel proposition of having a “multi-door courthouse” at the Pound Conference. (I will call this M1 or the first generation of mediation).
One topic that is not talked about much is: mediation in the future. Perhaps we assume that the future of mediation is self-defining or that "others" will make good choices. Will courts and agencies be the primary delivery system for mediation? It did not start that way. What about community programs? And what about technology? Mediation may be soon coming to a pocket or purse near you.
Margaret Shaw talks about what she hopes to see in the future for mediation: that mediation in schools will make a difference; certification regulations will form slowly, so as not to lose the flexibility of the field; that there will be an increased emphasis on collaboration in society.
Randy Lowry speaks of the developments in the mediation field he foresees: more educational programs in schools, more institutions, more agencies practicing mediation, growth of programs, program expansion at Pepperdine, contribution to medical field.
The purpose of this article is to recount some of mediation’s past, consider its current state, and offer thoughts on development trends for the future, asking the question whether we are doing “justice” to the “mediation movement” we have created.
In the space of a single generation, it would seem, the idea of using less-adversarial methods of conflict management has come of age. But what of the political culture?