Access to Mediation: Future Mediators

Much of the focus of the previous papers in this fascinating series on the future of mediation have, understandably, been on just that topic – that is, what will, or should, mediation look like. The questions asked have been both exercises in reflection on where we’ve been (after all, the best way to anticipate the future is to understand the past), on the coherence or not of the profession, the risk of our having been distracted from the core values and value of mediation, and – in the end – questions about what mediation really is and what we as mediators really do. These are perennial questions for a number of professions – at the edges of most forms of practice there will be doubts as to whether what some do may legitimately count as coming within the boundaries. These are also primarily normative questions – imagining the future will depend in part at least on how we evaluate the present,

At the same time, this practice, this profession is committed to the path of establishing some of those boundaries more clearly through domestic and international standards of accreditation and training. While this is enough of a topic for its own paper on the future, suffice to say here that this process will – like any boundary – serve to keep out as well as protect those who are within; and many of those who will be “defined out” of the practice may well have been doing mediation – or something like it – long before we ever thought of our accreditation criteria. But, as I say, that’s for another time.

The noun at the heart of this conversation is, of course, “mediation” – and we’ll continue to have a wonderful time defining and disagreeing and continuing to practise, recognising in a kind of cosmopolitan spirit that there are differences, some of them quite deep and going to the heart of what we may think really matters; but of course because we’re mediators we also think that keeping the conversation going also really matters. There is too, both in this series of papers and in the four decades of practice and conversation, a kind of analogue to liberal political society, in the reluctance to dictate final versions of what is the right form, the right choice – save, of course, where those choices might be life threatening and harmful to others. So, that conversation – I hesitate to call it debate, as that implies the possibility of there being a winner, which would never do when we’re talking about mediation! – will continue; and we’ll continue to fret about the troublesome edges of the practice or the degree to which the practice has been captured by institutions and professions, or the ways in which we mediators have been distracted from the virtuous purpose of mediation.

If, however, much of this conversation has been and continues to be about the edges and boundaries of mediation, let me shift the focus a little, from mediation to mediators, and comment on what seems to me to be an important part of our landscape – the young, aspiring, and potential mediators. They, too, are at the edges and, in a very real sense, they are the future of mediation.

There could hardly be a better place to start drafting this paper on the future of mediation than at the ICC’s annual commercial mediation competition. At this event, we see the future of mediation in at least two tangible ways: first, in the established acceptance of mediation as a legitimate and normal way of dealing with disputes (despite the differences we may have about what is ‘core’ to mediation practice); and second, in the enthusiasm, commitment and talents of the student participants in the competition. It’s this second element I want to focus on. On the first point, it’s clear enough that mediation is no longer the “alternative” form of dispute resolution that it was when many of us started out on this path; it’s equally clear that the institutionalising of mediation marks that arrival. The marginal has become mainstream.

Over the course of six years of seeing the competition from more of the students’ angle, as a team coach, and in this latest iteration, in seeing the competition and participants from the other side of the table, as judge and mediator, I’ve become ever more confirmed in two views – one is that mediation is taken seriously by this emerging generation of young lawyers; the other is that the world is going to be in good hands. In an optimistic variation on Pogo’s “I have seen the enemy and he is us”, I come away from such an event thinking “I have seen the future, and it is them.”

The other, more sobering, angle on this is in seeing the photos from the event and noticing the number of people of – shall we say? – a certain age who are the current phalanx of mediators (and arbitrators, professors, lawyers or whatever they do at their day jobs), and realising that that group holds the legacy of mediation which somehow needs to be handed over to this next generation. One of the potential problems with legacies, of course, is that they only get passed on when the current generation has shuffled off this mortal coil; but in this case, there’s such a potential that the resources of that legacy of mediation can be well used by the emerging generation that there’s an imperative to move the inheritance on sooner rather than later.

I think of “legacy” in two ways here: there’s a backward looking, or historical aspect, a reflection on what we’re gained and the lessons acquired from the last three or four decades of experience; and there’s the forward looking aspect, an awareness that the world that the new mediators will work in is likely to be very different from the one that many of us started out in. At the very least – on that second aspect – aspiring mediators are less likely to have to spend their time explaining and justifying mediation to a sceptical audience, though there remain legitimate questions about the impact of private settlement on the integrity of public justice.

The point in commenting on the emerging mediators rather than on mediation per se is to reflect for a moment on one or two aspects of what I think we see. First – and this may be a unique feature of the group of students who gather in Paris each February – what I see is young professionals who are, increasingly, well-versed in the process and protocols of mediation. What this tells me, by inference rather than empirical inquiry, is that their home universities are increasingly taking mediation and ‘amicable’ dispute resolution seriously. Other attendees at the competition may have views on this, by my impression has been that the standard of preparation and understanding has risen considerably in recent years. Dispute resolution as a generic programme now has well-established academic credibility; arbitration has long since secured its professional and academic place; and negotiation and mediation are, in many respects, good examples of consumer power in that the student demand for such courses has gradually turned into institutional acceptance (though each of us can probably think of exceptions, especially where the dinosaurs of doctrinal law don’t see the point of clinical courses – even though these now have solid academic credentials).

The second implication of this is that their home jurisdictions are taking mediation seriously: universities and law schools no longer need to defend or explain programmes in mediation, as they are now part of the increasingly official doctrine of the judiciary and government agencies. There’s a separate conversation to be had on the question of what may be lost when a ‘critical alternative’ becomes the orthodoxy, but that’s for another time. Parenthetically, I recall my own first encounter with a leading member of the legal profession – one of the ‘gatekeepers’ I needed to persuade – when I returned to New Zealand over 30 years ago, all fired up with enthusiasm about mediation. The response was, as you’d expect from a lawyer, couched in the alternative: on the one hand, we don’t need mediation and, on the other, if we did, we lawyers don’t need training because it’s more or less what we do anyway. Happily for mediation – and, personally, for that particular lawyer – the resistance was soon dispelled.

One question remains, however, and it can be captured in the one word that has been part of the DNA of mediation from the outset (as is the nature of DNA). This is the idea, promise and practice of access. Where we all kicked off in this “alternative” dispute resolution game was with the concerns about access to justice or access at least to resolution. Given my concern here with the young mediators, the future of mediation, my access question takes a different direction and is in two parts: first, how best can we (the gatekeepers, the current generation of mediators) facilitate access to the profession for this next generation; and second, access to what?

The first question has bothered me for some time. Over the years of teaching generic courses in dispute resolution (domestic and international), and more clinical courses in negotiation and mediation, I’ve always had a handful of students who have been ‘captured’ by the idea and the promise of this kind of work. They have ranged from the students who were never entirely sure about the choice they’d made to go to law school but now saw in mediation a way of both staying in or around law and working in ways that sat more comfortably with them, through to the students captivated by the potential of mediation and peace building in international or intrastate conflicts and wanted to head in that professional direction. Their questions at the end of the semester have typically come down to the same thing: how can I get to do that kind of work (and, by implication, now, not waiting another 20 years)

The tough answer to that question has been, at least initially, that there isn’t a standard career path for mediators. The cynical, but not too unrealistic version of this response also came up at the Mediation Round Table preceding the ICC’s competition, in which one answer to the question about setting up mediation practice was: “become a retired judge”, This, however, might only be the more recent version of the answer, to the extent that this field of work, having been resisted by lawyers is now at risk at least of partial capture, in particular in the commercial field.

But neither answer will do. It’s hardly a way of drawing people into a field of work that we still think is important if we suggest that it’s just a matter of hanging on and being patient for a decade or two or – worse – a matter of waiting until you’ve become sufficiently important through your other primary line of work (lawyer, judge, diplomat, politician etc) that people will take you seriously as a mediator. There is a reality, of course, that a mediation qualification – now an almost imperative part of starting on the path – is not sufficient, and that it remains necessary to get some miles on the clock. This, however, is the perennial dilemma for people in more or less any field when they read the job description that requires a minimum of X years of experience, but there’s no way of gaining that experience without getting that job.

Happily, the growing legitimacy of mediation and its statutory and regulatory recognition in many state and inter-state jurisdictions (consider recent EU Regulations on cross-border mediation (e.g Directive 2008/52/EC; or Regulation (EU) No 524 2013 – the latter specifically on establishing online dispute resolution for consumer disputes), and its incorporation in various guises in or around the judicial process, mean that there is a world of mediation which this next generation of aspiring mediator can enter. This means too that there are likely to be more organisational and institutional positions with mediation as at least part of the professional job description. True, mediation may still be described as part of the “soft skills” that people may acquire, the implication being that the other stuff – being “hard” – is also more important. But what we’re also seeing, as much in the commercial world as anywhere, is the recognition from the top that it’s the soft skills that actually make the difference.

My question remains, however: for those of us already in or around this game, what can be done to facilitate access – and aren’t those two of the warm words we’ve lived by? – to this world. I persist with this for two main reasons: first, there is important work being done by the Young Mediators’ Initiative (https://imimediation.org/young-mediators-initiative), in their words “to support young mediators and mediation advocates with finding opportunities to gain experience in the field of Mediation”; and second, if the gathering of talent at the ICC competition is anything to go by, there’s a scarily competent, culturally diverse, multilingual, cosmopolitan group of emergent mediators waiting in the wings.

In fact, if I take that second point first, there’s a simple practicality about wanting to facilitate access to the profession for these ‘aspirants’: rather than seeing them as waiting for the opportunity to push the last row of lemmings off the cliff, I’d prefer to see them as resources we’re wasting if we don’t find ways of getting them to the table. Many of the qualities that we’ve long imagined can be captured in mediation in terms of its accessibility – culturally, linguistically and so on – may well be embodied as much in this next generation of mediators as it has been articulated as part of our aspiration and agenda.

So, on my first question from a couple of pages back – how can we better facilitate the route to mediation for this next lot of mediators, I think there are several kinds of answers, which are not couched as alternatives. The first is already well-established: the provision of degree-level courses and well as non-university based courses. This is the educational component. The second is institutional  – and while much of this might not be in our immediate control, it does involve being part of the creation of and support for those organisational and institutional developments that incorporate mediation, which in turn may provide job opportunities. The third, which we can broadly call the standards element, is also gaining ground institutionally (through bodies like the International Mediation Institute and the newly founded Singapore International Mediation Institute), and through domestic legislation or interstate (EU) regulation. The one caveat to enter here, just to keep the question on our agenda as we continue to think about the shape of this line of work, is to ensure that the creation of standards and accreditation criteria doesn’t at the same time create barriers to entry and recognition for those who have taken other – legitimate – routes to recognition as mediators. I think here in particular of those many elders who may have worked for years as “mediators” without knowing it, but who lack the official “credentials”. This, I suspect, is not likely to be an issue for the emergent generation of mediations.

The fourth, and possibly the most important, part of ensuring this future is less easy to capture in a single word, but it’s about what we would have called in earlier time apprenticeship. If, as I suggested before, one of the imperatives of – and barriers to – getting into mediation is the need to have some experience at the mediation table, then realistically the only practical way in which this will happen is if established mediators invite emergent mediators (not all of whom are “young”) to be at the table. There will be practical issues of confidentiality and, perhaps, costs if parties are concerned at paying for two mediators – but these are readily overcome.

The way in which this ‘mentoring’ can be managed will of course depend on the agreement and fit between mediator and “apprentice” but I’d imagine a sequence, over a few mediations, starting with observation and feedback (that is, the new mediator simply observing and then joining the established mediator in a review conversation), moving through to acting as assistant mediator and, in the end, to co-mediation. And at some points along the way, the established mediator will take his or her hands off the steering wheel, knowing that there’s a co-driver perfectly capable of taking over.

This paper, however, is not the place to set out any prescription – it’s merely an exercise is imagining the future, all the more so because there’s little value in deferring taking advantage of that future when they’re right there.

I raised a second access question earlier: access to what kind of mediation world? This, I think, is the question that is in the process of being given various answers by this series of “mediation futures” papers; it’s also being given more shape by the ways in which mediation has established its move from the margins to the mainstream. But, if my optimism about the potential of the next generation of mediators is well placed or at least not too naive, then I also think that the answer is that they too will co-create the world of mediation to which they’ll have access. And they will continue to have this same kind of conversation about their world of mediation.

                       

Ian MacDuff

Ian is Teaching Fellow, Centre for ICT Law at Auckland Law School. He was, until June 2016, Associate Professor of Law and Director of the Dispute Resolution Initiative at Singapore Management University. He previously taught at Victoria University of Wellington for a number of years. He has been a practising… MORE >