Reflections on Mediation
Forty years ago, community mediation was in its infancy in the United States. The debut of community mediation programs had its start in part through the Law Enforcement Administration Act (LEAA) that was formed to develop new techniques and systems to strengthen law enforcement. It was also a time when the court system was overwrought with problems like heavy caseloads and unworkable procedures and processes that simply were not delivering what was promised----due process, timely adjudication of cases and delivery of justice.
Many of you will remember the authors writing at the time and the titles of their books. Jerold Auerbach’s Unequal Justice, George Cole’s Criminal Justice: Law and Politics, Willard Gaylin’s Partial Justice, James Yaffe’s So Sue Me! The Story of a Community Court, John A. Robertson’s Rough Justice: Perspectives on Lower Criminal Courts. On the academic front, 1973-1976, there was dialogue about the need to decentralize the court system and to find a better way to manage cases. Richard Danzig, Michael J. Lowy and William L.F. Felstiner, among others, published articles in the Law and Society Review about using mediation in everyday disputes, about avoidance behavior, about the limits on legal change. Anthropologists Laura Nader and Barbara Yngvesson were studying small claims disputes.
A seminal turning point for mediation came at the 1976 Pound Conference when Professor Frank E.A. Sander of Harvard Law School first articulated the concept of a multi-door courthouse. The conference was convened by Chief Justice Warren Burger to address problems associated with the administration of justice. Imagine----offering people alternative methods to resolve their problems, make justice accessible and available. This was the Big Bang that ignited new ideas for managing civil and criminal cases (Big Bang reference courtesy of Michael Leathes and Deborah Masucci).
Mediation was on the horizon and trainings emphasized the process as an art, not a science. Lawyers were getting trained and marketing themselves as problem solvers and expert negotiators. There was a diverse mix of people learning mediation skills---all ages, ethnicity, employed, retired, professional, student, all levels of education, some with an advanced degree or no degree. There was no licensing. Most mediation centers would certify an individual to mediate for its particular program.
In 1981, Fisher and Ury’s highly popular Getting to Yes was published (now in its 3rd edition). Stephen Goldberg, Eric Green and Frank Sander authored their hornbook titled Dispute Resolution, published in 1985. Christopher W. Moore published The Mediation Process: Practical Strategies for Resolving Conflict in 1986 (now in its 4th edition). As a student, I felt mediation would need to find a home as a profession, notwithstanding the fact that at its core, it is a process with inherent values of neutrality, self-determination, and confidentiality. Mediators do not have the power to make decisions for the parties. Would mediation find its place in psychology emphasizing the humanistic side or would mediators practice in the shadow of the law?
In 1982, George Mason University offered a Masters in Science degree in Conflict Management through its Center for Conflict Analysis and Resolution. Today, it is the Center for the Study of Narrative and Conflict Resolution (CNCR). In 1983 the Program on Negotiation at Harvard Law School was born. A consortium of faculty, students and staff from three universities, Harvard, MIT, and Tufts, dedicated themselves to developing the theory and practice of negotiation and dispute resolution. In 1986, Pepperdine University established the Institute for Dispute Resolution, first in the southwest. Both Pepperdine and Harvard have been successful in training business leaders, judges, professionals and CEO’s with intensive one and two week courses, without matriculation. In 1996, Arizona State University opened a mediation clinic at the Sandra Day O’Connor College of Law that is now the Lodestar Mediation Clinic (and has hosted the ABA Section of Dispute Resolution Representation in Mediation competition). Today, there are well over 200 degree programs on conflict resolution and peace studies.
With the increase of trained mediators and those interested in consensual dispute resolution, national organizations and local trade associations followed. The American Arbitration Association was already active in the area of labor and employment. In 1993, the ABA created the Section of Dispute Resolution, now a global leader in the field with over 18,000 members. Mediators and arbitrators joined the Society of Professionals in Dispute Resolution in the 1990’s, an organization that merged with the Academy of Family Mediators and CREnet to form the Association for Conflict Resolution (ACR) in 2001. Now ACR has 15 chapters and 19 sections of specialties in the field.
Styles of mediation morphed from facilitative to evaluative, transformative, narrative, and transcendental. The umbrella of alternative dispute resolution models includes hybrids like med-arb, arb-med, binding mediation (an anomaly to me), collaborative practice, ombuds. There is value- based mediation (nod to Gary Friedman and Carrie Menkel-Meadow), interest-based bargaining, and conflict transformation (the Institute for the Study of Conflict Transformation was formed to further the work of Robert Baruch Bush and Joseph Folger).
Mediation moved from its grassroots beginnings to the business of paid work in the public and private sectors. Lawyers started winding down their litigation practices to pursue mediation as a career. Other people opened their own private mediation practices. In 1998, Attorney General Janet Reno urged lawyers and federal agencies to use mediation. Today, for example, the Equal Employment Opportunity Commission and the U.S. Postal Service REDRESS Program use mediators.
Changes are endemic to any new field that reaches out to create a wider marketplace.
Back to the Future:
Stay grounded in mediation principles and values
Preserve values of voluntariness, self-determination, impartiality, and confidentiality. And, at its core, respect the process and trust that people can and will make decisions for themselves. Maybe I’m a purist or one of the idealists Jeff Krivis describes in Where Have All the Idealists Gone? Long Time Passing. We have experienced what Albie M. Davis calls "the magic of mediation." It is understanding the nature of conflict, of respecting boundaries, expectations, and using listening skills to manage difficult emotions and situations. Often parties will reach an agreement intuitively. Prolific writer Kenneth Cloke explores some of these elements in The Dance of Opposites: Explorations in Mediation, Dialogue, and Conflict Resolution Systems (2013).
Judicial support for early dispute resolution, communicate respect toward and between lawyers and parties, increase use of mediation
Law schools around the country are offering courses in mediation, negotiation and ADR. However, that may not be enough. I attended a program this month with a panel of five newly appointed federal district court judges. The discussion centered not on federal procedure but on how lawyers were treating each other in practice and in the courtroom. The discussion centered on the lack of civility among lawyers--not answering e-mails, not responding to phone calls, and little attempt to settle cases or even discuss the issues notwithstanding rules to engage in meet and confer. Practitioners too busy to take the time to listen to one another and stay client focused. In time of conflict, people will still turn to lawyers to file lawsuits. Law schools spending time training and educating the value of a client-centered approach to dispute resolution will improve how new lawyers work cooperatively and collaboratively with others. Adversarial conduct costs clients money and time.
Implementation of some form of multi-door courthouse to make access to justice available to all; advertise and promote ADR
Litigation is expensive and often not affordable as a means of redress for everyone. Think of the cost of trying a matter involving a claim of $50,000. or less. Forrest Mosten speaks of making mediation friendly courthouses (see prediction #7 in The Future of Mediation: Twenty Predictions for Mediation in 2030.) Training staff and judicial officers about mediation and educating litigants about alternative methods to resolve issues other than going to court empowers the public to make informed decisions. Use social media to promote ADR.
Fund and teach conflict resolution in the schools, K-12
Many high schools offer peer mediation programs---however, if they are not part of an educational curriculum, they can be dropped easily if a new principal or a school district does not understand the benefits of mediation.
Growing use of mediation in both the public and private sector
The American Arbitration Association offers mediation in addition to arbitration and there are other ADR related businesses and organizations around the country that include mediation in their menu of services. I foresee private and public employers implementing internal dispute resolution models to reduce workplace conflict. Partnering with trade associations that work with small business may be a way to offer such systemic changes (e.g., chambers of commerce, small business associations, Better Business Bureau).
To certify or not to certify
The topic of certification and licensing is raised often. What is an appropriate number of hours of training and experience to hold oneself out as a mediator? Is it the same for ALL mediators? Commercial? Community? What about family mediators? What are the qualifications needed to help a couple construct a parenting plan for their children? Will parents need to meet with a child specialist-mediator in order to reach an agreement that is in the best interest of their children? Who decides? (Do we create a new level of membership such as when ACR formed the Academy of Advanced Practitioners? Or, maybe form an association of professionals to share expertise as the Academy of Professional Family Mediators, for example?)
I have reservations about certification and licensure because it is difficult to put mediators or mediation in a box and it builds a bureaucracy. I am reminded of a quote from Mediation Principles and Practice, 2nd ed., by Kimberlee K. Kovach in which she says:
"At first glance, the definition of mediation appears simple.
Mediators need to be vigilant of their limits and adhere to high ethical standards. If not, we will fall prey to some form of legislative or judicial oversight. Let’s help the public become better consumers: learn about your mediator, ask questions about his/her practice and experience.
Will there be enough work for mediators to make a living? Yes. Remember the words from Fisher and Ury in Getting to Yes: "Conflict is a growth industry."