Giving Back Or Just Giving It Away: Can Mediators Empower Others If We De-Value Our Own Expertise?


I recently attended a ‘volunteer mediator’ recruitment event at the District of Columbia Bar Association. Representatives from several state and federal court systems plus some US government agencies pitched their alternative dispute resolution programs to an audience of 20 attorneys. Using phrases like ‘giving back’ and ‘only a few hours a week” each rep explained his or her program and their need for volunteer mediators.


I kept thinking: what if this was a meeting in which court and government agency representatives were recruiting Association for Conflict Resolution members to serve as volunteer attorneys. Heaven forbid.


I was also reminded of the time I overheard an Army general telling a professional diplomat how he expected to become an ambassador after he retired. The diplomat somewhat undiplomatically replied: “Yes, and I’m hoping to become a general.”


How can a military officer (however senior in rank) expect to assume an ambassadorial post with the skills and experience it takes a professional diplomat 20 years or more to acquire? Similarly how can many of these mediator wannabes think they qualify as a mediator? But most importantly how come more members of our profession don’t object when the gangways are thrown open and almost anyone can assume that with minimal training they can mediate?


I came up with two reasons:


One, many altruistic-minded mediators (trained and untrained) are happy to handle cases for nothing or next to nothing as a way of ‘giving back’ to the community.


Second, many court mediators, who may want to be appropriately compensated, would rather keep the peace than rock the boat and demand the compensation they rightfully deserve as professionals.


What many ignore is the collusive effect these attitudes have on court systems and government agencies that ‘employ’ volunteer mediators for little or no remuneration. How can a profession enhance its standing when so many of its practitioners give away their services to court systems and government agencies? Sure, we have professional associations, annual conferences, shelves of literature, and advanced degree programs in conflict resolution. But does any of this counter the image of mediators as nothing more than volunteers who by wanting to ‘give back’ provide a free lunch to countless court systems and government agencies? I don’t think so.


It’s one thing to voluntarily mediate for groups or individuals lacking the funds to pay for our services. It is quite another to proffer our skills and experience to organizations that have the funds, but have grown accustomed to the free lunch mediators unwittingly provide.


Another inconsistency in this equation is the fact that judges (at least where I mediate in the District of Columbia) love mediation. They think nothing of referring knotty landlord-tenant, custody and divorce, and probate cases to mediation. Think of the time (and money) mediation saves the court: A case that might take months to adjudicate (often with the added time and expense of a jury) may be settled in hours. Isn’t that worth something? Forget it. Judges have the same attitude as court administrators: Why pay for something when you can get it for nothing, or next to nothing?


Where I mediate and probably elsewhere, some mediator wannabes volunteer for a year or two. Eventually they tire of handling these cases and move on. And so the DC Bar will hold another recruitment session and pitch mediation to a new crop of wannabes. What does this do for the PROFESSION of mediation? Little. Turnover like this means that any experience gained will be lost.


In DC it matters little whether a mediation session lasts 15 minutes or hours. The stipend remains the same. I’ve mediated landlord-tenant cases lasting five hours. Whatever the length the stipend is still $50. The Court’s $50 stipend for mediating civil cases hasn’t increased since its mediation program began more than twenty years ago. Adding insult to injury, no matter how much time we may have spent crafting a divorce or custody agreement, if the parties decide not to sign, we receive no remuneration.


Court administrators state that we should not look to mediation as a source of income. Tell me: Why should court-appointed attorneys earn a living from lawyering at the courts and in government agencies but not mediators? Because as long as mediators flock to volunteer their services, I contend these courts have no incentive to change their policies and treat mediators as professionals.


What I also fail to understand is why many court systems (the District of Columbia among them) offer free divorce, civil, etc., mediation to parties that can well afford to pay. I’ve handled property cases for divorcing couples whose incomes are in six figures and have hired high priced counsel. Nevertheless, the taxpayer foots their mediation bill. I suppose it’s another example of easy-come-easy-go. Mediation is cheap so give it away whether the parties can pay or not.


People ask me: If I disapprove of how the Court treats mediators, why do I continue? Namely because the cases are so challenging and because I want to see the system change. So, several of my colleagues and I press on. After years of advocacy the D.C. court did increase stipends…once. Despite our efforts to increase stipends since then, the Court refuses to budge on the issue of compensation.


While this article may catch the attention of the courts, my aim is to provoke discussion and debate among my mediator colleagues who acquiesce to serve as second-class citizens in court systems throughout the country.


Believe me, there’s plenty of opportunity for do-gooding at the court: Providing pro-bono legal advice to indigent parties, advocating on behalf of mentally and psychologically challenged defendants, and especially on behalf of youths in the child protection system, e.g., as court appointed special advocates.


But do mediators have the ‘stuff’ to push for change? I’m not sure. According to one school of personality research most mediators care more about ‘creating harmony’ than advancing their personal interests. In Helen Palmer’s landmark text The Enneagram and Lynette Shepherd’s The Essential Enneagram mediators are viewed as “open and accepting of others without judgment…able to sense others’ internal states and…capable of merging into deep connection with others.” Through this understanding comes the mediator’s ability to see all sides of an issue and to play peacemaker between warring factions.”


Both writers, however, suggest mediators have a ‘dark side.’ This dark side sees other people’s wishes [as] more pressing than their own. Mediators often find it easier to go along with other’s preferences than advocate for their own…” In other words, they don’t want to risk not fulfilling their desire for harmony [by] getting into a conflict with someone else.


A similar insight is found in Buckingham and Clifton’s “StrengthFinder research, which organizes “themes of talent” into 34 categories. The theme that most approximates mediation is ‘Harmony.’ Different language, same conclusion: namely, mediators steer clear of debate, “preferring to talk about practical, down to earth matters on which everyone agrees…keeping their opinions in check and instead looking for consensus and support.’


Obviously there are exceptions, but think, how many mediators do you know who fit this description?


What I conclude is that mediators would rather maintain the peace than enter into healthy controversy, rather build bridges than build professional self-esteem. Maybe, the courts have known this all along and understand that there’s nothing to worry about. The free lunch could last forever.


I hope, however, that my comments stimulate discussion within our profession. Maybe, out of this debate mediation in courts and government agencies will cease being a volunteer pastime and begin to count as a legitimate ‘day job.’


References


The Enneagram, Helen Palmer. Harper & Row. 1988. (Pages 345-360) and The Essential Enneagram, Lynette Shepherd.


Now, Discover Your Strengths, Marcus Buckingham and Donald O. Clifton. The Free Press, 2001. Page 101.

                        author

Sig Cohen

Sig Cohen has conducted hundreds of family mediation cases in which custody, visitation, child support, and property issues were involved.  He is a member of Beyond Dispute Associates and partners with Judge (ret.) Carolyn M. Parr in co-mediating older adult and elder cases through Tough Conversations, a subsidiary of Beyond Dispute.   During… MORE >

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