For some reason, beyond my understanding, the decades old debate continues. How should mediation be defined? The better question is, “How can the practice be applied?” And herein is the genesis of the divergent paths upon which mediation has developed in the last thirty years.
In the United States two broad areas of practice emerged around the turn of this century: institutionalized programs and private practices. While these distinctions seem obvious on the face, their implications define the future of mediation in important ways.
The decades from the 1980s through the mid 2000s brought a magnitude of mediation program institutionalization that I don’t think any of us had any reason to anticipate. While at present no state has general requirements for the practice of mediation or licensure as a profession (MTI 3/1/2015 http://www.mediationworks.com/medcert3/staterequirements.htm), most have certification or other requirements for mediators who serve the courts. This was clearly not the case in l980. Requirements for mediation practice at the state level are promulgated and managed by judicial branches, sometimes at the county or local level, or through statewide mediation associations. The result is that there is institutionalized court practice and then there is everything else. Clearly the states have stopped short of regulating the practice, and allowed the courts to manage practice for what the courts have jurisdiction over. But there is so much beyond what the courts have control over.
Many of us remember the 1990s and our hopes for the institutionalization of mediation, and yet what we achieved may not be quite what we had hoped. Our ardent hopes for the widespread access to conflict resolution alternatives became, well, institutionalized. Clearly in Virginia where I have practiced for decades now, sat on Supreme Court of Virginia’s Dispute Resolution Services Advisory Board during the decade in which mediation became legislatively driven and governed, and saw my own court-based mediation services shift from the alternative to the required, the hope of mediation has suffered from the inevitable reach of institutionalization.
Don’t get me wrong; institutionalization has its benefits. Benefits such as governance that benefits consumers in that they can expect minimum levels of mediator competency, no cost of low cost provision of services, and widespread access to services. Courts have benefitted as well as mediation as become a major docket management tool. The “alternative” has become a part of the system.
So what is the downside of institutionalization? This brings us back to the question of “How should mediation be defined?” While the “Standards of Practice for Mediators” that are promulgated by our major professional organizations and echoed in state statutes and by statewide mediator associations clearly define the bounds of acceptable practice for mediators, many of the practices of institutionalized programs have moved us away from the hope of mediation. Where, for example, the hope of mediation once involved an impartial mediator facilitating a robust exploration of parenting arrangements between parents, it now involves some court-connected “mediator” leading parents through a checklist of binary choices: do you agree to this or that? While I am not saying that such choices have no value to parties, this is not what we had hoped the promise of mediation would bring to party decision-making.
Then we saw the movement spread to the federal level with the permanent enactment of the Administrative Dispute Resolution Act (ADRA 1996) which requires all federal agencies to embed and operate alternative means of dispute resolution with their administrative structures. “Alternatives” are those practices and processes that are alternatives to formal administrative and litigation procedures. The ADRA spurred massive growth of the uses of ADR and yes, some institutionalization of practice, but not to the extent of what has occurred in the courts. Like states, agencies have the ability to govern ADR practices used within their jurisdictions, yet ADR programs within agencies seem to become ever more varied over time. In the most successful federal ADR programs there seems to have been a significant interest in finding practical ways to apply the promise of mediation and a myriad of other alternatives. And in my view as someone whose practice is now primarily in federal workplace mediation, the programs that have been the least successful are those that define ADR very narrowly as some pro forma process of mediation…..just another box to check.
And then the Uniform Mediation Act (UMA) was passed and adopted by many states as well. The UMA’s primary purpose was to institutionalize important tenets of mediation, primarily confidentiality rules and expectations. Some states adopted the provisions of the UMA, while many more enacted their own versions of it. I’m not sure what the practical benefits of the UMA have been to either agencies or consumers as the mediator’s confidentiality obligations have remained a constant, while party confidentiality remains a privilege.
Perhaps one unexpected benefits of the institutionalization of mediation has been the creative adaptations that continue to flourish against it in the private sector. Any social scientist remembers Irving Goffman’s work on “total institutions” and the resulting drive of the individual to express individuality. Such adaptations move us from the checklist practice of mediation to ponder more creative possibilities. Just a quick review of the weekly mediation news on Mediate.Com sheds light on the myriad ways that practice is being applied. One of the more intriguing pieces I read recently on CNN’s website was a Valentines Day feature about “Divorce Hotels.” Yes….you read that correctly. Far from flip, some creative practitioner is combining multi-disciplinary divorce related services into a three-day divorce process in resort like settings. Who can’t see the value of working with a mediator, a divorce financial planner, a psychologist, an attorney, etc. with massages between sessions. Sounds absurd? Think again. And the service provides a ritual end to one of the most important adult relationships we have.
While on my annual tour of major mediation professional organization conference, and a few statewide ones too, I see widespread acceptance of the institutionalization of mediation and yet not as much interest in mediators working together in interesting collaborative ways to further other mediation practice. Most of these meetings feel more like a competition for scarce resources (clients), than an opportunity to collaborate. And all too often this exclusivity keeps the next generation of mediators at arms lengths in efforts to protect turf. As a field, we need to do much more to embrace and mentor this next generation or the field will be dominated by institutionalized mediation.
At the February 2015 meeting of the Texas Association of Mediators, Justin Corbett, the new Executive Director of Association for Conflict Resolution, shared some of his forthcoming data on mediation and consumers. Justin presented a solid marketing approach to discovering what consumers search for in Google terms when they are in conflict situations. His data is fascinating and provides rich information for those who actually want to do the hard work of marketing mediation. The alternative is that we can rely on institutions to serve up a steady supply of mandated clients and often at rates that don’t adequately compensate mediators for their expertise.
So, what is the future of mediation? Perhaps “Back to the Future” is an idea worth pondering. Back to the drive to create and offer alternatives to our own ADR programs, processes and practices.
Arthur Pearlstein explains how the ADR field has become more commonplace. However, he notes there is still resistance because of the judicial system's structure.
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