Complete article first published in the January 2012 issue of Alternatives to the High Cost of Litigation available online to current subscribers.
Back To The Future
The question: Why has mediation use grown?
The authorities: A survey of the people who were there, at the beginning of modern practice.
The takeaway: New institutional initiatives offer solid practice opportunities.
Until the 1970s, formal mediation activity in the United States was largely confined to labor contract negotiations by the Federal Mediation and Conciliation Service and various state mediation agencies.
In the 1970s and 1980s, however, mediation spread to new areas: business and commercial, family and divorce, environmental, public policy, neighborhood disputes, and even prisons.
One could speculate endlessly on the reasons for the ‘70s re-emergence of a process that in its simplest form—one person helping others to resolve a dispute—is undoubtedly as old as mankind. Rather than contribute further speculation about the reasons for the growth of mediation, for this article we interviewed 31 people who were at least in part responsible for that growth—those who began providing mediation services in the 1970s and 1980s. (We also compared and included here some of our own experiences.) We conducted each initial interview in telephone calls, but asked some follow-up questions via electronic mail.
We asked the mediators a series of questions about what had attracted them to the nascent mediation field, why they had remained in the field, what changes they had observed, whether they viewed those changes as positive or negative, and where they anticipated mediation would be 10 to 15 years from now. In brief, we sought to elicit their views on the past, present, and future of mediation.
The mediators in our study entered the field from diverse backgrounds. Slightly more than half—16—are attorneys. Inasmuch as mediation typically deals with disputes, and many disputes lead to court filings, the high proportion of lawyers in the first wave of mediators is hardly surprising.
Furthermore, it is generally agreed that a motivating force behind mediation growth was the search for alternatives to the court system. Thus, lawyers who knew first-hand the problems of the legal system led the effort to provide alternatives to that system—and one of the primary alternatives was mediation.
The non-attorney mediators we interviewed were engaged in a variety of occupations at the time they first became involved in mediation. Three were graduate students, two were professors in fields other than law, and nine—including some of the lawyers—had labor backgrounds. Others included a peace/civil rights activist, an ombudsman, an Outward Bound program leader, a family therapist, a youth gang worker, and a conscientious objector performing alternative service at a student housing project in Belgium.
WHAT WAS MEDIATION’S DRAW?
The study participants’ attraction to mediation came from a variety of sources. For those with experience in the adversarial approach used in courts and arbitration, mediation’s contrasting collaborative structure was compelling. Perhaps the best-known example of someone whose experience with the adversarial system which led him to embrace mediation is Frank Sander, who was at the time a Harvard Law School family law professor.
During a sabbatical in Sweden in 1975, Sander said, he “began to reflect on [his] experiences in dispute resolution in the U.S., noting that the courts often made things worse in divorce cases, but that labor arbitration worked pretty well to solve a variety of problems.”
Sander said he wrote down some of his ideas “about ways of resolving various disputes and sent them off to some of my colleagues at Harvard Law School for comment.”
These ideas ultimately led to his famous article, “Varieties of Dispute Processing,” presented at the 1976 Pound Conference, and which can be found in “The Pound Conference: Perspectives on Justice in the Future” (A. Levin & R. Wheeler eds., West 1979). Many consider the Pound Conference to be the birth of the mediation movement. It was a three-day, St. Paul, Minn., gathering formally known as the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. The event brought together about 200 judges, legal scholars, and bar leaders to examine the efficiency and fairness of court systems and administration.
“[T]here’s something magic about [mediation] that grabs people,” said Sander, who is Harvard Law’s Bussey Professor of Law Emeritus. “[W]hen people get into mediation, in many cases, they’re subsumed . . . in the warmness of mediation, and the potential of the process to get [to a resolution] more amiably and more quickly.”
For Carrie Menkel-Meadow, Georgetown University A.B. Chettle Jr. Professor of Dispute Resolution and Civil Procedure, it was experience as a Legal Aid lawyer that led her to mediation. “[W]inning the case didn’t solve the problem,” she told us. “I would win a lawsuit and the next day the welfare department would change the regulation. So I was more interested in solving legal problems than winning lawsuits. And I thought mediation was a better way to do that.”
Because arbitration, like litigation, is an adjudicative process, some arbitrators were drawn to mediation for reasons similar to those expressed by Menkel-Meadow.
Co-author Steve Goldberg has noted,
I had been doing an awful lot of arbitration in the coal industry, and I was making plenty of money, so that was fine. But I’d go to the same coal mine time after time, and essentially arbitrate the same dispute—different people, but essentially the same dispute, and I became very frustrated that I was deciding cases, but not solving problems.
Religious traditions of peacemaking, in particular those of the Religious Society of Friends (Quakers), Mennonites, and Buddhists, played a role for several mediators, among them Gail Bingham and Christopher Moore (see below), as well as David Hoffman, who is founding member of Boston Law Collaborative LLC, and Jean Paul Lederach, professor of international peacebuilding at Notre Dame University’s Kroc Institute for International Peace Studies, in Notre Dame, Ind.
Intellectual Challenges: Another frequently mentioned reason for being attracted to mediation was its intellectual challenge—could the mediator assist disputing parties to find a mutually acceptable resolution of their dispute that they had been unable to find on their own?
For example, co-author Margaret Shaw was drawn to mediation for “the challenge and satisfaction of really trying to understand what mattered to the people you had in front of you, figuring out what the particular Gordian knot in their situation was, and helping them see and untangle that. It’s both intellectually and interpersonally satisfying.”
Social and Political Change: Still others reported that they were attracted to mediation because they saw in its collaborative approach to decision making a means of bringing about social and political change. In addition to citing his Quaker background as an influence, Christopher Moore, founder and president of CDR Associates in Boulder, Colo., told us that mediation seemed to reflect the principles of both Martin Luther King and Mahatma Gandhi. “I was concerned,” he said, “about how we could have significant social change, and have it done in a manner that was peaceful, respectful, and did minimal harm.”
Bernie Mayer, another CDR Associates founder, and a professor at the Werner Institute for Negotiation and Dispute Resolution at Creighton University in Omaha, Neb., also saw mediation as a way to further his personal and political goal of “working with people on some very difficult issues in their individual and collective lives, and doing it in a way that was fundamentally using an empowerment model. . . . We were trying to give some real meaning to the concept that was thrown around a lot in the 60s of participatory democracy—what that really looked like in practice . . . but that also has an interpersonal manifestation.”
Harvard Law School Program on Negotiation co-founder William Ury, who is co-author of “Getting to Yes,” and Washington, D.C., mediator Susan Carpenter took the broadest view of all concerning their attraction to mediation as a means of achieving social and political goals. They saw collaborative decision making fostered by mediation as necessary for global survival.
“The conflict that most drew my attention,” Ury explained, referring to the Cold War, “was the prospect of nuclear war that was the Sword of Damocles hanging over all of us. I never quite understood why it was worth threatening the whole human race for a conflict between the Soviet Union and the United States.”
Whatever drew them initially to mediation, once our respondents experienced it, they were captivated.
Some were delighted at the constantly changing topics of the disputes in which they became involved; others enjoyed the opportunity to become involved in the lives of others. Nearly all commented on the pleasure involved in assisting participants in mediation to resolve their dispute, often a dispute that had become life consuming.
“You’re helping people, you walk away, and you feel good about it,” Marvin Johnson told us. Michael Lewis said, “I really enjoy helping people put their own personal jigsaw puzzle together in a way that makes sense to them.” Both Johnson and Lewis are veteran neutrals at JAMS’ Washington, D.C., office.
The mediators also described the excitement they feel when, in the course of mediation, the likely resolution of a hard-fought conflict becomes apparent. Peter Adler, president of the Keystone Center, a Keystone, Colo., public policy nonprofit, made this point vividly. “When . . . people gain clarity into something that was one-dimensional for them, and then all of a sudden they can see that there’s more dimensions than one, people start to get unstuck,” he said. “I just love that. Yeah, and it’s not about how much I made, it’s not about the case, it’s just something special . . . that’s the million dollar moment for me.”
All the mediators we spoke with agreed that today’s mediation landscape bears little resemblance to what they saw when they began mediating. Most strikingly, the use of mediation has expanded dramatically. Peter Adler told us that when he started mediating,
Mediation was kind of a neat little idea, and the thought was that this would be very good for little problems on the courts’ dockets—trees, dog poop on the sidewalk, all that kind of stuff, and certainly not anything serious. But, what we learned is that things that are “little” to some people are big to the people who might hold those problems. And we’ve learned that the processes, techniques, and strategies and values actually are quite pertinent to huge numbers of different sorts of problems and conflicts and disputes and different types of litigation.
Perhaps the most significant change our respondents noted is the extent to which mediation has become institutionalized in the judicial system. Nearly all of the respondents recognized that the judicial embrace of mediation is a major reason for its increased use, which they consider to be a positive development. They were also pleased that lawyers have been able to make productive use of mediation.
Institutionalization is not viewed as an unalloyed good, however. Judicially ordered or strongly encouraged mediation has led those lawyers who are not interested in settlement to use mediation for other purposes.
“Sometimes [the lawyers] are not interested in a settlement at all, at least that day,” Eric Green, a co-founder and principal of Resolutions LLC, a Boston ADR provider, explained. “It’s just a step they have to go through. . . . [Too often] people engage in mediation with the idea that it’s just going to be a protracted-type process that’s going to give them more time in the litigation to either postpone the day of reckoning, or gain more information . . . rather than really rolling up their sleeves and working hard to find a settlement.”
Peter Adler agreed. “Lawyers learn how to game any system pretty fast. I’ve heard lawyers say ‘We’ll go through this bullshit, but we won’t put on much of a case, because we really want to get to the big show.’”
STYLES AND APPROACHES
As the use of mediation has expanded, the amount of research and writing devoted to mediation has also grown. Gail Bingham, who is president emeritus of Washington, D.C.’s Resolve; said:
We have established a more robust and rigorous pursuit of research and reflection in this field. Reflective practice is a long-held value, but it has become more professional, with academics from many disciplines who ask interesting questions and bring the rigor of intellectual thought to these kinds of practices.
Some respondents lamented, however, that the growth in research and writing has encouraged unproductive debate among mediators and scholars concerning the “correct” approach to mediation. Homer LaRue’s comment was typical of many: “One of the things that I’ve become increasingly disturbed about is that we’ve gotten into too much debate between evaluative and facilitative mediation, [and] transformative,” said LaRue, who also is a Washington JAMS neutral. “Any mature mediator will tell you that during the course of a single mediation, he or she might use techniques from any of these approaches. . . . We’re losing some of the art by trying to make it doctrinaire and rule-bound.”
The mediators also expressed widespread concern about the lack of quality control—both of mediators and trainers. “We train too many people,” Madison, Wis., mediator and arbitrator Howard Bellman argued, “We don’t train them well, we don’t monitor them well, we don’t have any sort of an effective oversight, all that stuff that we always talk about.”
Several mediators also told us that they worry about the growth of mediation models that focus primarily on the legal strengths and weaknesses of each party’s position and on the dollar amount that should resolve the dispute.
“[C]ommercial disputes often are just ‘How much money?’ or ‘How little money?’” said Michael Lewis. “Occasionally you get a commercial dispute in which there is a little more nuance, and people are trying to do things, or are willing at least to think about doing things differently. But in the commercial world, I think, there’s much less ability to help people do things differently.”
“[I]n the early days,” observed co-author Margaret Shaw, “lawyers who brought cases into mediation were more open to thinking creatively. Now many simply want us to persuade the other side that they’re wrong.”
Gary Friedman, an attorney-mediator at Mediation Law Offices in Mill Valley, Calif., also told us that he thinks some of the original promise of mediation has been compromised. “For me mediation was really about flipping the basic professional assumption that we knew better than people in a dispute about what they should do with their lives,” he explained. “The people that came to mediation in the beginning really got that. . . . [O]ver time that changed because lawyers got involved, and said, ‘Well, this is a settlement conference, we know how to do this.’”
A number of mediators expressed concern that the field has become too specialized and routinized. Christopher Moore said that “because of the specialization dynamic, people get locked into one area of practice. One of the most wonderful things about my practice has been the cross-fertilization of ideas. You can take an insight from doing a family case . . . or any interpersonal case, and apply it to big public or international conflicts. . . . I worry that the specialization may prevent some of the great cross-pollination of ideas.”
VARIATIONS IN PRACTICE AREAS
Several mediators noted that concerns can vary according to practice area. For example, co-author Steve Goldberg said that he found an obsession with financial settlements to be less of a concern in labor–management mediation than in business/commercial disputes.
[I]t’s a whole lot easier for me to get the parties to focus on interests in labor-management cases than it is in most business cases—unless there is an ongoing relationship between the disputing parties in the business case, like there is in a union–management situation. . . . Whether or not a mediation will be at least partly interest-based is influenced primarily by whether or not there is a mutual interest in the relationship.
The mediators who provide services in public policy matters—often related to environmental issues—were the most positive about the opportunity for creativity in their work. According to Susan Carpenter, “The range of creativity can be much greater in the public policy area . . . particularly if you are able to work upstream on issues, as so many government agencies are doing today.”
She continued: “Many agencies are shifting toward a more collaborative practice, and they want a mediator to come in and help . . . design a conversation so that issues and perhaps potential outcomes can be outlined up front—it’s more conflict prevention than intervening.”
“I’ve mediated disputes,” Carpenter said, “where everybody’s hot under the collar, people claiming ‘my right as a citizen is involved.’ People are battling with arguments over values. . . . People rarely say, ‘Pay me this much and I’ll go away.’ . . . What some will say is, ‘If we can all work this out, it will probably be better than either a court or agency decision.’”
THE FUTURE OF MEDIATION
We asked the survey group members to envision the future of mediation over the next 10 to 15 years. Their predictions were remarkably similar.
Their general sense was that the type of mediation that takes place in the shadow of the courts is likely to increase and that such mediation is likely to become even more routinized than it is at present. “There’s no question in my mind that it’s still growing,” said Carrie Menkel-Meadow, “and there will be more of it. Litigation is getting even more expensive . . . so all the quantitative reasons will push it.”
Several mediators told us they expect to see particularly substantial growth in mediation use to assist in the resolution of public issues, an area where mediators such as Bowdoin College Prof. Craig A. McEwen, in Brunswick, Maine, see greater prospects for creativity. “[T]here will continue to be new opportunities for people to do creative work in the public sector,” he said.
Those who practice in the public policy context draw a distinction between their work and the work of those who practice in the shadow of the courts. As Chris Carlson said, the work of mediators in the public sector involves “engaging citizens in policy making and implementation.” Carlson, chief adviser to the Portland (Ore.) State University-based Policy Consensus Initiative, added that it also means “getting people from across sectors working together on tough issues, and dealing with the conflicts that naturally arise in that process.”
Prof. Josh Stulberg, of the Ohio State University Moritz College of Law in Columbus, Ohio, said:
[M]y hope would be we’re going to get involved one way or another in public education policy, health care, energy. It strikes me that those areas are extraordinarily exciting in terms of trying to play a facilitative, leadership role in helping to both shape and implement new initiatives in those areas. Whatever health care looks like in 15 years, I’m sure it’s still going to involve people who believe they ought to get a lot of things that somebody else doesn’t want to pay for. So there’s a lot of work to do. I don’t know what the context will look like, but to me, the exciting possibilities are taking a more prominent visible role in shaping those discussions.
Interestingly, many of the mediators who work in the public policy area predicted that growth in the facilitation of collaborative processes is likely to be carried out by organizational insiders, rather than outside interveners.
“I think [mediation] will have a strong presence, but it may not be what we’re expecting,” explained Susan Carpenter. “I don’t think there will necessarily be more jobs for mediators. I think there will be more training of staff people to mediate or use the skills of mediation internally. . . . [In today’s economy], the resources available for hiring a facilitator are going to become less just as the interest in using the tools of mediation increases. So what agencies are interested in is training people internally to be effective problem solvers both within their agency and with their external public groups.”
Peter Adler gave an example of what Carpenter described:
The U.S. Forest Service has set up a whole series of collaboration initiatives that utilize a so-called mediator to do the same things we do, but their rules are somewhat different and their roles are somewhat different, and they have very little interaction with other mediators. . . . They don’t know anything about our journals, our language, our jargon, they don’t know what a Batna [Best Alternative to a Negotiated Agreement] is, and they may not understand the intellectual distinction between interests and positions, but they get it. They get this stuff, and they do it. They do it all the time. So what I think is happening is that the ideas themselves that underlie the premises of mediation will find lots and lots of traction in lots and lots of places. And it may not be called mediation, it may be called lots of other things . . . but they’re moving along and taking the same ideas and the same [fundamentals] and deploying those ideas in very interesting ways.
WONDERMENT AND CONCERN
We find many things striking about our interviews with these “founders.” One is the genuine wonderment expressed by so many at having somewhat serendipitously wandered into work that “sang” to them—and that now, some 40 years later, has truly become formalized into a “field.” Another is their sense of privilege in witnessing the field’s tremendous growth and institutionalization.
We found an idealism—and if not, from time to time a bit of dreaminess—among these early mediators, including a determination to change the culture of disputing.
Mediation is for many a “calling,” a part of a larger cause or socially valuable enterprise. These individuals’ statements about what drew them to mediation convey their excitement and satisfaction in finding what they came to consider their life’s work. And they are justly proud of their writings, teachings, and program designs, which have contributed to people seeing and doing things differently.
On the other hand, another common theme that emerged is questioning and concern about where the field of mediation is headed.
To some degree, at least with respect to the mediation of cases in the shadow of litigation, practitioners have some real concerns about the effects of institutionalization. Will only lawyers have credibility in handling these cases, when alternative dispute resolution initially attracted individuals from a broad variety of backgrounds?
Is mediation in these kinds of cases just about money, with creative resolutions giving way to a more prosaic kind of horse-trading over numbers?
And will clients choose only mediators with subject-matter expertise, or mediators who are only facilitative, only evaluative, or only transformative, as if good mediators are not facile in more than one area? Of equal concern is a perceived lack of quality control in the field, among trainers and mediators alike.
Lest this group of founders be dismissed as aging curmudgeons, they also expressed excitement about the kinds of neutral work being done outside the litigation context. Josh Stulberg, for example, talks about “playing a facilitative leadership role in helping both to shape and implement new initiatives” in the areas of public education policy, health care, and energy.
Peter Adler talks about the U.S. Forest Service “setting up a whole series of collaboration initiatives to utilize a so-called mediator to do the same things we do.”
These kinds of initiatives and ideas offer a great deal of promise for the generations of mediators and disputants who follow.
“Don’t give up your day job” need no longer be the proverbial advice to new mediators. While, except for retired judges, becoming established as a mediator takes considerable time, it is now possible to make a good living mediating cases “in the shadow of the law.”
Furthermore, opportunities increasingly abound for using collaborative processes in state governments and legislatures, in the health-care arena, and in traditional institutions.
Thus, while the efforts of the founder generation may have led to the institutionalization of mediation, at least in the shadow of the law, for those who follow, the field may offer a promise with a different vibrancy, and with the potential to transform the culture of disputing in a variety of different contexts.
Goldberg, a veteran mediator and arbitrator, is an emeritus professor at the Northwestern University School of Law in Chicago. He is co-author of the treatise “Dispute Resolution” (2007 5th Ed. Wolters Kluwer). Shaw is a JAMS neutral in New York and was an adjunct professor at New York University School of Law for more than 25 years. The authors acknowledge with great appreciation mediator Amy Glass, whose questions sparked and informed the idea for this article, which is updated and adapted from its original longer version, in the April 2010 issue of Negotiation Journal, published by the Harvard University Program on Negotiation and John Wiley & Sons Inc.
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