Many complained how doing "free" mediations hurts the profession. Still others defended the practice as a way for new mediators to receive "on the job" training. There were emails calling for the establishment of a "national voice of mediation." Others expressed deep concern for what would happen to mediation if it became "professional," thereby taking away its openness for participation as mediators by all people and leaving, instead, just another fenced off career for people with appropriate degrees after paying thousands of dollars in tuition.
Then there were those emails that took the national mediation associations to task for not stepping up to the plate and doing the work that would create a real profession. This was followed by an email from one of those organizations, delineating what it was doing and urging mediators to become members. Next came those messages castigating mediators themselves for not advocating for themselves and asserting the "value of our work." One of my favorites was from the paralegal who, facing rejection for wanting to become a mediator, ended up going to law school only to have a "well-respected professor" question the desire to become a mediator. "Why would you want to do that? You have just earned a law degree. That's a job for old judges." Sigh.
There are a lot of frustrated and cynical mediators out there, many wondering, as I am, why it is not possible to make a living being a peacemaker. In pondering how mediation can be so valuable that courts all across the country have developed mediator panels yet a private mediator cannot find enough business to buy a loaf of bread, I decided to dig around in its history for some understanding.
As we all know, mediation has been around for centuries. More recently, the Federal Mediation and Conciliation Service (FMCS) was founded in 1947 for the purpose of resolving labor disputes. Over the years, FMCS has also helped other federal agencies develop their own mediation programs and the resulting growth of federal mediation programs has been astounding.
As recently as October, 2001, the Secretary of the Treasury, Paul H. O'Neill, issued a memo, acknowledging the costs of unresolved disputes, including "days lost to stress and illness as well as time dedicated to the preparation and processing of cases." He went on to reassert his support of "ADR techniques, particularly mediation" as a way of effectively resolving such disputes and enthusiastically stated that "I am a proponent of alternate dispute resolution (ADR) programs and am pleased that ADR programs are successfully operating throughout the Department." Unmistakably, mediation has found a welcomed home within the federal government.
Unfortunately, it hasn't spilled over to the general public and, thereby, spawned a mediation profession the way, for example, diversity trainers have emerged from government regulations. What's needed is legislation that encourages all disputants to start with mediation before progressing to arbitration or litigation. That would jump start our profession over night while reducing clogged court calendars. But I'm not holding my breath because such legislation would remove power from the judiciary and judges and attorneys are not about to let that happen.
THE POUND CONFERENCE
While the government has been increasing its internal mediation programs since 1946, the "modern age" of mediation really begins in 1976 with "The Conference On the Causes of Popular Dissatisfaction with the Administration of Justice" or, as it is more frequently called, the Pound Conference. This landmark gathering grew out of a concern for an overburdened judiciary that had been discussed earlier at the 1965 Presidential Commission on Law Enforcement and the Administration of Justice.
The intention of the Pound Conference was to help create a better system of justice in America. Whether or not this was accomplished, the Conference succeeded, on the one hand, in establishing mediation as an acceptable form of dispute resolution, primarily within the judiciary. But on the other hand, it created confusion about its place in the justice seeking process, a situation that still afflicts us today.
Out of this meeting of 200 judges, scholars and bar leaders came two distinctively different points of view. One saw mediation as an extension of the legal system and linked it directly with the judiciary. Its cornerstone was professor Frank Sander's concept of the "multi-door courthouse" wherein, with the help of a knowledgeable facilitator on the courthouse steps, disputants could choose the conflict resolution process that would best address their disputes. While mediation was still tied to the courthouse, the choosing of the dispute resolution process was left in the hands of the parties.
The other point of view was 180 degrees in the opposition direction. It was based on the belief that the courts were inefficient, oppressive and unfair. Its roots went back to the social and political activism of the 1960s and the creation of the U. S. Community Relations Service in 1964. This groundbreaking government agency took the mediation practices of the FMCS and applied them to community disputes. Mediation was seen as an empowerment tool by which citizens could take back control over their lives while preventing violence in their communities. Rather than putting the courthouse in the center of its vision, this approach proposed the creation of Community Mediation Centers whose citizen-volunteers would have a positive impact on living conditions through the use of mediation to resolve disputes.
No matter which approach one favors, mediation was acknowledged as a valid alternative to litigation and the promise of a new profession was on the horizon. At the same time, an on-going "turf" war began over which of these two approaches would control mediation: the legal system or the citizenry. Given that the intent of the Pound Conference was to create a more effective judiciary, it is not surprising that the legal system seems to have the advantage. As evidence of this, a recent article in the New York Times, one of the nation's three so-called "newspapers of record," referred to mediation as a "branch of law."
After the Conference, judges took its suggestions to heart and did incorporate mediation into the courts. But not as a separate "door" as had been suggested. Rather, they placed it into the litigation track, maintaining their control over the process and solidifying the perception of mediation as a branch of the law. At the same time, instead of the disputants choosing mediation on the courthouse steps, thereby creating a market for mediators, it was the attorneys who would do the choosing when told to do so by the judges (except when judges sent them directly to their retired judge buddies who are well compensated.). Meanwhile, mediators were expected to volunteer their services. Eagerly searching for clients in order to start a practice, many mediators gladly did so, hoping to demonstrate their negotiation prowess to attorney-gatekeepers.
But in essence, the manner in which mediation was brought into the legal system put a lid on the development of a serious mediation profession, crushing the promise briefly glimpsed at the Pound Conference. Ironically, despite its second class status and the variable quality that comes with a free labor force, court mediation programs have proven to be exceptionally successful in resolving cases, saving taxpayer money (an estimated $2 million in Los Angeles County alone) and lightening judges' caseloads.
Perhaps even worse than the affect the swallowing whole of mediation by the courts has had on the mediation profession is the chilling impact this has also had on our official mediation organizations. Whether or not mediation really is a branch of law (and I fall on the "not" side of this argument), these organizations act as if it is. For instance, rather than being an advocate for mediators in court programs, they work along side court administrators, seeking ways to create better mediation volunteers. I would rather they be more like a union, actively working on mediators' behalf to see that their labor is compensated, thereby helping to create respect and value for the profession.
Come awards time, many of those receiving recognition come from the ranks of attorneys, judges, or those firmly rooted in the legal profession, such as city council members and those who run bar association programs. The language and vision of the omni-present slogan "Mediate. Don't Litigate." associates mediation directly with the legal system. And the professional journals of these organizations are often dominated by articles about the law and mediation, the courts and mediation, or how judges handle mediation. In other words, the shadow of the judiciary falls heavily on our trade organizations.
OUTSIDE THE COURTHOUSE BOX
In truth, this domination by the legal system is not going away. If anything, the legal profession will more than likely take over the court mediation programs. The question, however, is will it also take over the whole profession? I fear the answer is yes if we do not free ourselves and our profession's promise from the courts' domination over us, our imaginations, and, most importantly, how we perceive mediation.
I suggest we begin by thinking about disputes more broadly. There are 281 million Americans. Perhaps 30-40 million of them take their disputes to the courthouse. What about the other 220 million? Are we to assume they don't have any conflicts? We only need to look toward our own lives to know that disputes arise in our workplaces, schools, social organizations, houses of worship, families, and most intimate relationships. Surely, these need attention, too. Maybe if we thought of disputes in a much larger context than litigated cases, we mediators might realize that the opportunity for practicing our skills is enormous. And this isn't just wishful thinking.
According to a 1992 Survey financed by the National Institute of Dispute Resolution (NIDR), 45% of respondents indicated that when confronted with a dispute they "leave it alone/avoid it" while another 24% indicated they "argue/(get into a) verbal argument." Meanwhile, only 1% associated "dispute resolution" with arbitration while 2% associated it with mediation. Clearly, there are lots of disputes out there. The potential market for mediation outside the courthouse is huge. The problem is the public doesn't know about us. Nor do we know yet if and what they would pay to resolve which disputes. But the sleeping giant is out there.
The Wirthlin Group, who conducted this Survey, warned about the gap between what people say and do. Then their report went on to record that once respondents were made aware of how the different dispute resolution options work, 62% said they would go to a mediator. 62%! Not to an attorney. Not to a judge. Not to a courthouse. But to a mediator. To you. To me. Taking the Wirthlin Group's warning into consideration, it is eye opening to realize that even if a fraction of the public chose mediation, there would be enough work for all of us and the profession of mediation would blossom.
What my brief research has revealed is that mediation is the public's dispute resolution process of choice. They just don't know it yet. Meanwhile, because it thinks of disputes as primarily being litigated cases, the mediation community walks in lock step with the court program. Therefore, it is clear to me that we must A) liberate ourselves from the perception that mediation is a branch of the law while B) developing the much larger market for mediation that awaits outside the courthouse.
We can begin by acknowledging that the real gatekeepers of disputes are the disputants. When in conflict, it is they who decide to hire an attorney or, more often, to sit on it or step outside and settle it. The statistics seen to indicate they would turn to mediators if they knew about us. Therefore, it seems rather clear that, if there is ever going to be a mediation profession, we must create a program whereby the general public 1) becomes aware of mediation, 2) puts it before litigation as their primary choice for dispute resolution, and 3) comes to understand that it is applicable wherever and whenever disputes arise. Mediation will only be a real profession when the public thinks as naturally of calling a mediator to help resolve a dispute as they now think of calling a doctor when they develop the sniffles.
In order to accomplish this, first I call upon all mediators and our official organizations to shake ourselves free from the legal lethargy into which we have fallen and begin focusing our energies on promoting mediation as its own discipline. Reject the "turf war" begun at the Pound Conference and, instead, embrace mediation as an equal of, not a servant to, litigation.
Next, we must create a clear and well defined plan that takes solid and meaningful steps over the next several years toward building an awareness of mediation in the minds of the public. What I am suggesting is that we get to the public before they even come to the courthouse steps, before they even think of hiring an attorney. What I am envisioning is a public that automatically thinks of mediation whenever a dispute occurs, relying on the judiciary not as their first choice but their last. Once this has occurred, no mediator will have to search for the mediation occupation. It will be everywhere.