Comments: Killing Mediation: The Specialized, Professionalized And Neutralized Mediator

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David Anderson , Atlanta GA     07/01/10
Time of death
Robert, I very much appreciate your analysis as to the impending demise of the field. in a very real sense however, this brings to mind the situation in which a paramedic is aware that the patient doesn't have a pulse, isn't breathing or demonstrating any other sign of life and simply wants to wait until the patient arrives at the hospital to have someone else actually pronounce the death of the patient. It seems to me that during the mid-life years of the field, during the formation of ACR when the professionals and scholars effectively incorporated, co-opted and ultimately did away with the NCPCR, the heart of the movement was severed from the body. The profession was born, the movement died. The credentialing, specializing and neutralizing of the practice of mediation allows the process to often serve as just another cog in the wheel of injustice. The community practitioners (please read: unschooled, uncredentialed unwashed masses of community activists) and those who linked mediation practice to particular values propositions (i.e. peacebuilding, equal and restorative justice, deep democracy) were those that often sounded the alarm that you are sounding again today. "The soul of the field is being lost to the technicians!!!" I teach mediation and conflict transformation in a university setting -- Eastern Mennonite University (Harrisonburg, VA) -- and what pleases me most is that our student body is most heavily populated by those ideologues and peacenicks that got locked out of the profession during the early move towards professionalization. What I read in your analysis is that the profession has become technical, siloed, and to some extent, isolating for practitioners.Each group has its own standards that are good for its special kinds of cases; each silo can only hold one type of process, the public square or "commons" for the good of the overall movement and community has been lost. This is like trying to keep the patient alive with machines and extraordinary measures. Each organ specialist knows what works for that system and yet is rarely asked to consider whats good for the entire body, let alone the quality of life of the patient and the patient's community. Its costly, its painful and the patient is really just a hollow shell of her former self. My proposed prescription: Maybe we should think that as opposed to reviving the field we might pull the plug and pray that the soul of the movement is reincarnated in some other form in its next life. be well thanks for letting me in on the conversation

Charles , Dallas TX   04/12/10
Re your observation: "In managing the most difficult matters, it is not their neutrality, but rather their active and tenacious involvement with all parties concerned in brokering an agreement." The best compliment I have ever received as a mediator was "his tenacity is legendary."

David Bogan, Auckland     03/01/10
Hello Robert, it's always nice to know that you and Peter Adler and Luis Diaz are always there fighting the good fight. Luis by the way has just been appointed to the World Bank panel in Washington so he's elevated the level on which he is fighting for this cause. It really reminded me of the discussion in Keystone a few years ago where the discussion was simplified to that of mediators being farmers or hunter gatherers with the farmers needing the rules and regulations (fences and gates)and the others not. For my part I am still holding on to the description used by the Minister for Agriculture in NSW when they introduced compulsory mediation ito the farming sector where he described mediation as simply being "Three people sitting under a tree to resolve their differences." and even using this still gets me into lots of strife - not with clients or mediation users who understand it perfectly - but with other mediation professionals for whom it is far too pedestrian and unprofessional. Keep up the good work Robert, we mediators need our own John the Baptist to call out in the wilderness - even if we're the only ones who hear it. Kind regards, David

Rick , Baltimore MD   03/01/10
I hate to think the situation is that bleak, but I don't come to this from a professional background, and as a volunteer mediator, I really don't have my own personal finances to consider. I do agree that license/certification issues could cast a bad light on the field. Here in Maryland however it's the mediators who are doing our own evaluation and credentialing. There is a peer-evaluation process in development for community mediators in Maryland, and I'm hoping that it will one day extend to professional mediators. I've seen so much separation in the processes being offered by, and opposition between community/volunteer mediators and professional mediators. I hope that mediators of all levels, in all styles and models and from all backgrounds will start to learn from each other to better the mediation processes being offered everywhere and not just the process that we offer as individual mediators.

Rick Buccheri, Baltimore MD   03/01/10
Wow! There is a lot to chew on, and while I think you bring up some great points, I think this is just the beginning of a much larger conversation about mediation. I mediate for Community Mediation ( in Baltimore city, and we mediate in a model that falls somewhere between transformative and facilitative. Because I come from a community mediation background, my perspective is limited, but I still acknowledge that my opinions are strong. I am somewhat bothered by the many different models of mediation. I would love to see more consistency across models and in different arenas so that the general public knows what to expect when they hear the word, mediation. I also recognize that personal style is different for every mediator, and my own mediation style changes with my mood. Therefore, how consistent could the process ever be? Still, I think there is great hope in building a better process through collaboration across the field. With all that being said, there are certain tenets of community mediation(CM) that I think are extremely productive and I would be hesitant to let go of. For example, in CM, we never make or set ground rules or guidelines for the mediation. If the participants want to scream at each other, then we let them. If a participant expresses concern and makes a statement like, "Are you going to tell him to stop screaming at me? I didn't come here for this. Isn't there a rule that you aren't allowed to yell in mediation? If you're not going to stop this, I'm going to leave", I just reflect their concern and ask what they want to do about it. "So it sounds like you're feeling bothered about how communication is happening in this session, and I'm hearing that you're looking for rules about communication in the mediation session. So what do you want to do about that?" Even if the participants don't agree about what the rules should be, it could be an opportunity to do an early brainstorm about it and set the tone for collaboration. Also, by not initially setting rules, it removes the mediator from the role of enforcer. Despite there being different styles in mediation, I do think that the processes across different types of disputes should be consistent. For instance, when we conduct an Older Adult mediation training, we aren't teaching a whole different process. Instead, we are building on the basic mediation training that the mediators would have already been through. Older Adult mediation training, like other specialized mediation trainings (ie. parent/teen, re-entry, re-integration, etc...) just offers insight into being more sensitive to the needs of the participants. We cover how to facilitate a conversation about guardianship issues, but facilitating that discussion isn't much different from facilitating a conversation about housework or communication. Participants who enter into the Older Adult Mediation process (or foreclosure mediation, or divorce mediation, etc.) shouldn't expect a whole new process, they should expect it to be like any other mediation they've experienced. I do see a big difference in how mediation is conducted through volunteer and community mediation sessions and how mediation is conducted in the courts, however I do believe that small changes are being made to provide a greater sense of consistency. I and other community mediators have recently started mediating in the Baltimore District Courts, but it was with the agreement that we would be mediating in the community mediation model. That means several things. We will not be rushing the process to reach agreements. If the participants need more time than the docket allows, we will be able to schedule additional sessions. It also means that we would not be making suggestions or leading the participants to agreement. Overall, it just means that regardless of the type of dispute, we still have an opportunity to explore underlying causes of the dispute. In my first district court mediation, two men were in conflict over the transfer and non-payment of a car. Although they came to court over the car, they had a long friendship that was in jeopardy. It was not until we explored the history of that friendship that there was any movement in their positions over the car. My hope is that instead of distinguishing ourselves from other mediators by compartmentalizing the entire field, we will all really walk the talk and collaborate until we find and practice the best parts from each model in one process.

Albie DAVIS, Thomaston ME     02/23/10
Tricoastal views on mediation as a profession
Hello to two of my favorite mediators, Robert Benjamin and Jonathan Reitman, and to Steve from Texas, who seems right on target. I grew up in California, now live in Maine, so I see a tricoastal conversation going on. First, Robert, Hello, so good to hear your thoughts on this important topic. And, on the side, some Wheaten Terrier dog talk. Gromit says hello to Bean! Second, Jonathan, in keeping with what you've said about the need to be a community-minded generalist in any profession in Maine, yesterday I recommended you to someone from New Mexico who wants to find a mediator for an intergenerational family dispute in Maine. I sent your CV, highlighted the range of your experience and closed with what I felt was most important, that you are a delightful, warm, creative human being. Third, Steve, for the most part, I think you are completely right. "Follow the money." Or, as I said once in a report on community mediation in Massachusetts, "form follows funding." And, on that note, I want to say hello to another favorite mediator, Janet Rifkin, pioneer in the field of contemporary mediation, who is splitting her time between Massachusetts and Southern California, where she has a new granddaughter. Whenever this topic comes up, I think of a seminal article that Janet Rifkin and Ronald M. Pipkin wrote in 1984 for The Justice System Journal. Volume 9/2. Long title: "The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation." Their research and article is very rich, but what I want to share here is something I wrote in 1991 about a source they used to frame their own thesis. "The authors describe the classic stages of the rise of any new profession, as charted 20 years earlier by Harold L. Wilensky (1964). I quote Pipkin and Rifkin at some length because their analysis helped me cut through my denial that professionalism is already a fact, forced me to drop my self-righteous attitude about its consequences, and allowed me to view such development with a sense of history AND a sense of humor." I'LL PUT MY OWN THOUGHTS IN CAPS AND TRY TO SHORTEN THIS. (Albie.) FIRST, THE PROCESS starts by people "doing full time the thing that needs doing." SECOND, practitioners, clients, or (members of) a professional association press for the establishment of training schools. The first teachers are the "enthusiastic leaders of the movement," "protagonists of some new technique." If training schools do not begin in universities , they always try to end up there. (COMMUNITY MEDIATION: A Handbook for Practitioners for and Researchers. Duffy, Grosch & Olczak."The Issue of Credentialing," Albie M. Davis. 1991. The Guilford Press.) I'LL STOP HERE, BUT THEY ARE A TOTAL OF FIVE STAGES AND STEVE HAS CAPTURED THE SPIRIT OF THOSE REMAINING STEPS ENDING WITH: GRANDFATHERING IN THE FEW REMAINING “UNQUALIFIED STRAGGLERS,” AND CLOSING THE DOORS! Those of you who know me may also know I'm not a member of any organized religion, but I find it interesting that in the Bible, Jesus is considered a mediator. (1 Tim.ii.5 "For there is one God and one mediator between God and men, the man Christ Jesus.") Be there a second coming, will some Association of Professional Mediators be on hand to charge Jesus with mediating without a license? But, there is room for optimism. Some form of "mediation" has been around in every culture since two folks argued over a possession and a third stepped in to broker a peaceful solution. In many countries throughout the world, community members of all backgrounds are trained in 30 or 40 hours to mediate well. Other cultures seek out people for the role based upon life experience alone. You can explain the concept of mediation to strangers on a train in the time it takes to go from one subway stop to another, and they get it. Making a living mediating. Another story. Ciao, Albie Davis

Steve , Bedford TX   02/23/10
Murdering Mediation
Your article on Killing Mediation and Specialization is on point and replete with detail and history. However the genesis of the evolution of professons is very simple. Its about money and power. It's not "killing" its murdering. Killing can be justified in special cases, murder cannot. Licensing is nothing more than a state sponsored monopoly. Professions used to be more general. As a Psychologist I lived through the wars of "Clinical" Psychologists lobbying for and getting special dispensation as a specialization which in effect channeled the insurance payments to a much smaller group. The effort to specialize as a clinician rather than a behavioral, counseling,educational or some other brand was driven by an oversupply of psychologists competing for a shrinking insurance dollar. Specialization was the political move that narrowed the field. Mediation is taking the same sorry path. Its a sad state of affairs but it follows history. As a court eligible mediator, non attorney, I fight the battle for money/engagements with lawyers who seek to narrow the field. Soon it will be not just lawyers competing with non lawyer mediators but a dozen other specializations all competing for a shrinking dollar. Its simply about money, power and more money. Not special expertise or improved service.

Jonathan , Brunswick ME     02/23/10
professional but not specialized
As usual, Robert, you give us much food for thought. I appreciate your cautionary tone, in which you add your voice to others who have recently decried the "professionalization" and "specialization" of the field of mediation. You and others contend that such fragmentation divorces mediation from its "true" holistic roots, in which mediators were allegedly freer to be creative, and less bound by the strictures of particular disciplines. I do feel some slight tension, however, when you lump together "professional and specialized." Here in Maine, as in many parts of the country I suspect, most mediators don't have the luxury of specializing in a particular area. In the past five years, I have mediated many family law matters; as a former union attorney I have also mediated multiple labor-management conflicts and employment disputes; a good part of my practice helps parties resolve construction and various commercial disputes; in New England we know the value of good neighbors and I have mediated many boundary issues and a dozen or more community disputes; a growing part of my practice has been the mediation of long-standing environmental disputes, sometimes with dozens of stakeholders; I have also been privileged to mediate and train mediators in multi-ethnic disputes in the Balkans and the Middle East. My point is simple: while I like to think I bring a degree of "professionalism" to this wide array of disputes, I don't claim to "specialize" in any one of them in particular. While I am a member of several ACR (and ABA) sections, I use those memberships as professional networking and learning opportunities, and don't feel restricted by any Standards of Practice they promulgate. I believe the "roots" of mediation are alive and well in the practices of those of us who, by choice or economic necessity, serve as neutrals in disputes which call for creativity, compassion and care. Maybe I'm naive, but I still think we outnumber the "specialists." With deepest respect to you and the Peter Adlers of our field, I think the "end of mediation" is a long time off.