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<xTITLE>The Business of Mediation</xTITLE>

The Business of Mediation

by Becky Bartness
February 2015 Becky Bartness

Those of you I have spoken to over the last month have described mediation and arbitration practices that cover a wide spectrum of substantive areas and participants. Alternative dispute resolution has been embraced by hospitals, elder care facilities, schools, unions, business management, community leaders, courts, state and federal agencies. I for one don’t need to explain ADR processes to the extent I used to in the days when mediation was first introduced into the court system and trial attorneys considered mediators to be wild eyed, overly intellectual optimists at best and traitors and heretics at worst. 

Now is not the time to get comfortable with our established niches, however. Mediation is a business as well asa calling. Mediators need to identify and find ways to reach out to under-served communities and share information with other mediators to they too can expand into similar markets in their geographic and/or practice areas. We are not competing against each other when we unite to increase access to and knowledge about mediation. We are not dividing the pie, we are increasing the size of the pie.

As an integral and necessary part of this process we need to create value for our profession in the eyes of the public we serve.  For instance, while volunteerism is a vital part of our profession’s commitment to expanding the concept and use of mediation, there is a point at which it negatively impacts our practices and the members of the public we serve.

I practice in a state where the court and Attorney General’s mediation programs are largely volunteer-based. These programs are used by thousands of members of the public annually. For most, these programs provide their only experience with mediation. While volunteer mediation programs provide training  opportunities for inexperienced mediators and cost savings to the state and county, these benefits may outweighed by the programs’ negatives: (1) inconsistency in mediation skills due to mediator selection based on availability rather than, for instance, the market; (2) complete control by governmental agencies over training requirements and qualified training programs for, and mediation processes used by, volunteer mediators; (3) unreliability of volunteers whose personal and income-making demands take precedence over volunteer activities; (4)the revolving door nature of a volunteer staff;  (5) the damage done to our profession by  undervaluing all mediation services by creating a public perception that mediation services should be free and convincing  states, counties, and cities that they need never pay their mediators; (6) competing against, and reducing  the number and income of private mediators; and (7) as more power over the direction of mediation is ceded to government and other government or privately funded volunteer programs, professional mediators lose the ability to influence the future of mediation.

I suggest that existing mediator organizations assume a pro-active role as industry advocates at the local and national levels. For too long many mediator organizations have had the luxury of focusing on the creative and intellectual aspects of our profession to the detriment of the business side of mediation.

Biography


Becky Bartness is rated Martindale Hubbell AV® Preeminent™, the highest rating available, and is listed in the Martindale Hubbell Register of Preeminent Women Lawyers.

Ms. Bartness concentrates her practice in the areas of real estate, commercial, banking and environmental law, and commercial arbitration and mediation. She regularly represents lenders, developers and homebuilders in real estate and environmental matters, commercial and real estate loan transactions, loan restructures, bank regulatory and compliance matters, general corporate matters, and loan work-outs. In addition, Ms. Bartness is a highly trained mediator, has an active commercial mediation practice and is available for speaking engagements relating to the process of mediation.



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