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Dear Futures Project: What I Think I Know

We are the fortunate beneficiaries of Jim Melamed and’s twenty years of dogged persistence in all things mediation. Here are a few things about what I think I know about the next five years or so to come:

1. I’ve been most passionately influenced in my thinking about mediation by Peter Adler and Robert Benjamin with such concepts as protean negotiation, and irrationality. I’ve also been very pragmatically influenced by William Uri’s The Third Side, and I’ve been profoundly moved by John Paul Lederach’s The Moral Imagination: The Art and Soul Of Building Peace.

2. I’ve been practicing law for more than 30 years and mediating for 15 years. Like Peter Adler, I think mediation “is situational and contextual and the devil is always in the details.” I’m inclined to think mediation is not a field, but at this point of my career I honestly don’t care. I care about reaching people and being effective in helping them understand and deal with the hard stuff.

What these say to me about how mediation might best be “next”: Mediator, know yourself, know what moves you intellectually and emotionally, know what you want to do, and don’t unnecessarily worry about labels. (Do, of course, understand the legal limits on what you can do, and if it’s an area where lawyers also work, and you are not a lawyer, be careful about actions that could be interpreted as the unauthorized practice of law.)

3. A litigated court case, especially in the family law context, is often dishearteningly bureaucratic, or violent, or both, and with grave access to justice implications, and I believe it will get worse. The law is not “justice” per se; it is, however, a fairly predictable system of rules that can be used in your efforts to resolve your dispute. Access to justice implications relate primarily to the gross difference in the amount of “justice” that money can buy in the guise of expert legal representation.

What this says to me about how mediation might best be “next”: As fewer individuals find themselves able to afford the court system to resolve their disputes, or find themselves extremely distrustful of the efficacy and fairness of the court system for themselves and their problems, they may well turn instead to private, community-based mediation services if they are available, affordable, and effective. Mediators, build these! (And know how to do the business of mediation — you must make a viable living in order to keep providing your valuable services.)

4. The court system is underfunded especially in the family law context with its crushing number of self-represented litigants (themselves overwhelmed by the personal and economic catastrophe that a litigated court case is). The court system’s increasing reliance on mediation programs is founded on necessity (outsourcing work to free up judges and other court staff for higher priority matters, and outsourcing costs to the vendors, mediators and the parties because of budget shortfalls) and good intentions; yet, of course, being human creations, the mediation programs are practiced with numerous unintended consequences that make the reality different from the theory. I do not see the courts backing off their push to get more, and more standardized, court-based mediation programs.

What this says to me about how mediation might best be “next”: Mediators, anticipate both an expansion of court-originated mediation programs that are outsourced and also, with time, more in-house staff positions for mediation services. But also recognize and try to anticipate the unintended consequences. These can include the displacement of mediators who are not lawyers in favor of lawyers who mediate; the lowering of the effective fee paid through court-based programs to any mediator; and a perhaps unwitting substitution of “settlement conference” for “mediation.” I don’t necessarily mind a settlement conference instead of a mediation, if it helps my client (when I’m the lawyer) or my clients (when I’m the mediator), but I do mind it being passed off as “mediation” when it is in form and process a different flavor of, to use Peter Adler’s term, assisted negotiation.

5. Analogous to how radically (and many would say detrimentally) the practice and business of medicine has changed over the past 25 or so years, so, too, the practice and business of law is in disruptive change now. Factors relate to clients’ demanding lower cost services (to get more for less), barriers to access to legal services are falling, and there is ongoing exponential growth in computing and communication technology. In turn, lawyers increasingly struggle to maintain their practices, make less with their practices, and are protective of and look for additional sources of revenue. Some, possibly billing by the hour or simply of an antagonistic or aggressive nature, have little incentive to help their clients settle early and delay or create obstacles to effective mediation. To others, mediation seems like a natural and easy service to add and ignorance and hubris permit taking it on without adequate training or experience.

What this says to me about how mediation might best be “next”: Mediators, expect increasing competition from lawyers looking to expand their practices and retired judges in case areas that seem to involve the law and legal rights. Work to develop now the markets that do not yet seem destined for legal involvement, like programs in schools, at churches, in communities. Focus your business efforts in helping contain and resolve disputes before they reach the court level or before they directly involve legal rights (before the lawyers get there). Many lawyers will compete by lowering their fees, and clients do not necessarily know and appreciate the differences in problem-solving approaches, and may be swayed by the prestige of the law. In terms of the antagonistic or aggressive lawyers, they won’t bring their clients to you anyway if you are not yourself a lawyer, so, if you are not a lawyer, you needn’t pay them much mind.

6. Computer and communication technology is past the “revolutionary” stage and well into disruption.

What this says to me about how mediation might best be “next”: Mediator, invest real time and effort into learning what is available online, how to use it, and how to maintain it, in the areas of practice management, communication, and marketing. And repeat, for the foreseeable future. Pressures to provide more service at less cost means, in part, have a very efficient technology system in place for all the tasks you must do. Will it be your time/money/energy to do it, or will you pay someone else to do it, or will you have technological systems in place?

In closing, Dear Futures Project, take to heart and keep in mind as is said in Desiderata: “And whatever your labors and aspirations, in the noisy confusion of life, keep peace in your soul. With all its sham, drudgery and broken dreams, it is still a beautiful world. Be cheerful. Strive to be happy.”


Gini Nelson

Gini Nelson is a sole practitioner in Santa Fe, New Mexico. Her practice emphasizes private dispute resolution, including distance dispute resolution, and domestic, bankruptcy and bankruptcy avoidance law. MORE >

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