In being asked to look at the future of mediation, I naturally had to look at the past. I did notice that Nina Meierding has already made most of the points that I would make. When I started in mediation over 30 years ago, it was a grass roots field, looking to help resolve conflicts in the community. Community mediation centers had just begun to be funded by the federal government, and they were looking to help community members and community groups resolve conflicts in a way that empowered individuals.
I was an interloper back then, trying to make a living as a mediator. I was accused by many of “only being in it for the money”, and that if I really cared about dispute resolution I would do it for free. I pointed out that I needed to make a living, and so either I charged for mediation or I didn’t have the luxury of being able to do it. After a while, more people began to practice mediation as a profession, and it wasn’t as unusual.
Back then, all sorts of people were mediators, from every background imaginable. In fact, it was unusual for lawyers to mediators, both from their proclivities and because the State Bar Associations were quite nervous about lawyers acting as neutrals. For many State Bar Associations, this seemed like a conflict of interest for a lawyer, and it was discouraged. However, over time, lawyers realized that resolving disputes was a pretty good gig, and they and the Bar Associations became quite enthused about lawyers practicing as mediators. And once the courts got involved in referring cases to mediation, they often preferred to send cases to lawyers. Partly this was professional myopia, since often the courts only associated with lawyers. And partly it was professional protection. Some states even prohibited other than lawyers to take referrals from the courts.
Once the courts were referral sources, and lawyers were the mediators, mediation began to look more like settlement conferences. Mediation was begun late in the course of a dispute, and the purpose became settling before the court had to try the case. It was less about deep resolution, communication, self-determination, and empowerment; and more about getting the case out of the court system.
Some old-time mediators were still doing “facilitative” processes, and the transformative mediators never did sway in their approach, so there was still more than one approach being practiced. But late-stage settlement mediation is still the most widely practiced form of mediation across the country.
This being the case, I am delighted to report that there is currently a “new” approach gaining wide interest and support: Circle Processes. Based on native American circles, using talking pieces and facilitators, with wide ranging conversations and little interruption, these circles are being used for everything from victim-offender processes, conversations among gangs and communities, conversations within families about the care of elders and children, and more. Courts in several parts of the country (Brooklyn, NY; Ann Arbor, MI; Chicago) have adopted circles as a way to help parties to resolution. And who are the facilitators of these processes? Anyone and everyone! Back to the community roots of dispute resolution.
This gives me great hope for the future. I am convinced that somewhere, somehow, people will always find a way to help others talk through their disputes and find ways to resolve them through communication, self-determination, and empowerment.