As a mediation practitioner for almost thirty years, I have watched the field change dramatically. While others have written ably about the transformation of the field in general, I would like to focus on a very specific area – the decline of early intervention mediation (or what I call “pro-active mediation.”)
Historically, mediation was often used as an early intervention process to resolve disputes utilizing a participant-centered, interest-based approach. A primary goal was not only to get a “deal,” but also to resolve the underlying dispute or conflict itself. Early mediation prevented the escalation of the conflict and helped relationships survive after the mediation because the participants had not become so entrenched and alienated from each other– an obvious benefit to businesses, governments, agencies, and individuals, especially those who wanted or needed to continue to work together after a dispute was resolved.
Over the last twenty-five years, in order to reduce the congestion in the courts, judges in the United States began to encourage the use of mediation. In some states, mediation became mandatory and attorneys were sent to mediation (sometimes kicking and screaming). Over time, attorneys began to see mediation as a viable option for their cases.
As attorneys gradually accepted mediation, they also saw an opportunity to become mediators themselves. Some would-be mediators were trained; others were not. There was no licensing or credentialing – no requirements in many states for training of any kind. Mediators with legal backgrounds, who were not trained in mediation techniques, used their existing settlement skills that they were comfortable with, i.e., cost-benefit analysis, evaluating legal strengths and weaknesses, reality testing, and talking more with the lawyers than with the clients.
While these skills can be useful if utilized appropriately, untrained mediators used these skills as a style of practice, rather than a specific strategy at a specific time. They were not trained in techniques to uncover hidden interests, empower the parties, encourage direct communication between participants in a safe, collaborative atmosphere, look beyond the legal issues, and dozens of other techniques that create a participant-centered environment in which the disputants themselves are responsible for and empowered to make their own decisions.
As mediation was utilized more in the courts and the structure began to mirror traditional legal negotiations, the public began to see mediation as part of a legal process rather than a separate process that could be used early in a dispute. For example, instead of using mediation at the beginning of a workplace dispute, businesses would wait until a grievance had been filed. Instead of going to mediation when a couple began to talk about a divorce, they waited until papers were filed and the husband and wife’s positions were clearly defined. Instead of early conversations in a business dispute, they waited until a breach of contract had occurred, attorneys were hired, and a complaint filed with the court.
Because there was a higher level of conflict and entrenchment, mediators and attorneys who were not trained or experienced in working with conflict in a safe, constructive joint-session model, began to almost exclusively use a separate session model – i.e., the clients would not be in the same room together. Mediation resembled a settlement conference and while the author would like to stress that she believes that both joint and separate sessions can be valuable as a strategic tool, the separate session has become the default style for many mediators, especially those in the commercial sector.
Attorneys then expected the separate session model and were less open to communication directly between their clients – meeting together was seen as a risk, an unknown, something to discourage, rather than a normal part of the process. Some mediators promised the attorneys and their clients that they “would never have to even see the other side” as if such a strategy was a gift to be conferred upon them by a mediator who would then broker their deal through successive offers of compromise or a mediator’s proposal.
As the separate session model grew, so grew the reliance on the attorneys to be the primary negotiators – some attorneys even refuse to let the mediator talk directly with their clients who sit passively (but oftentimes, fuming) while the attorney and the mediator “settle the case.” Some mediators even introduce their process by saying, “If I have made both sides equally unhappy when I settle their case, then I have done my job.” While intended to be a humorous aside, it has more truth to it than we would like to acknowledge, as the participant-centered, early intervention approach declined and the “lawyerization” of mediation grew stronger. Direct input over the decisions moved farther and farther away from the participants.
Why should we change back to the earlier flexibility that was a hallmark of the mediation process? What motivations can now overcome our status quo bias that late intervention and separate sessions are now “just the way that it is done?” Perhaps, a look at the benefits and self-interest of all of the “players” can be helpful.
The advantages of an early intervention, participant-centered mediation process is immediately obvious for the participants. They see early action on their dispute; they save time and fees; they may have less reactive devaluation to the ideas from the opposing side, as he or she is not seen as someone who had been their opposition for a long period of time. Participants may feel more comfortable talking directly together to solve their own problems, rather than an outsider giving well-intentioned advice based on his or her own objective or subjective perspective of what is right or wrong. The participants may be more able to express underlying needs and true interests as a way to resolve their conflict, rather than focusing totally on legal rights and dollars. Durability of agreements also tends to be higher when there is a greater sense of participation and ownership of the resolution by the participants. Businesses would save money and increase productivity of the workforce if conflicts were resolved in an early, expedient manner.
Early intervention, participant-centered mediation creates many advantages for the mediation field itself. Mediation in the United States could return to its roots with a much broader pool of mediators, with more diverse backgrounds and skills, who could be utilized to solve disputes. (When conflicts are seen solely as a legal case, attorneys tend to hire “attorney mediators” in the mistaken assumption that having a legal degree makes a person a better mediator.) Early intervention, participant-driven mediation is used widely in many other countries, who look a bit askance at our trend in the United States.
Advantages for the mediator include less entrenchment by the parties and less sunk cost bias resulting in a greater possibility for creativity. Less reactive devaluation between the clients and the attorneys means unique and “elegant solutions” can be created and listened to by everyone around the table rather than relying on a mediator’s proposal, which may simply be a compromise and not meet the true needs of the parties.
The advantages for the attorney advocate are also apparent – but maybe more subtle. Higher client satisfaction in early resolution of their cases may cause more referrals to the attorney. As a consultant and trainer, I repeatedly hear frustrations by employees, executives, governmental representatives, and business owners about their desire to have more participation in their mediations and the ability to be able to talk to the other side early in the dispute. Attorneys need to balance their sense of protectiveness towards their clients with the client’s need to be involved and active in the resolution of the dispute. Each situation is different and needs to be treated accordingly.
Some attorneys have opened additional areas of practice as consulting attorneys for clients in early-intervention mediation. They can unbundle their services and act as a negotiation couch or an on-call consultant. Attorneys can serve as wise counsel to their clients and set aside (at least for the moment) the positional bargaining that characterizes the settlement conference model. Law will be seen as one of the helping professions – rather than the negative stereotypes that increasingly seem to dominate our profession.
In the author’s experience as a mediator in over 4,000 cases and in almost thirty years of working with advocates, consulting attorneys, and collaborative lawyers, she believes that all forms of mediation are valuable processes which each have their place in helping parties move forward in their conflicts. She takes no position on the “best” process, only that self-determination remains the ultimate goal of any form of mediation. She is hopeful that mediators, participants, and attorneys will re-examine the trend of late intervention, lawyer-centric mediation and bring pro-active, early mediation back as one of the important focuses of the mediation field.