Doug Noll discusses the future of litigated and non-litigated cases.
See the full transcript below.
My name is Doug Noll. I am a mediator from California, and I have been asked to talk about the future of mediation.
I want to start off by talking about litigated disputes, which is where a lot of commercial mediation is these days. I think tort cases will remain the same. There is not going to be any major changes in the mediation of personal injury cases, medical malpractice, or other cases unless there are major changes structurally in the liability insurance industry or in the litigation system.
For commercial and business disputes, we might see earlier and more frequent use of mediation. However, companies that signed on to the CPR Institute rules have not really been adopting early mediation for many disputes. I think there will be a slow change there.
There are growth areas in terms of litigated disputes. I think we are growing in the areas traditionally covered by the courts of equity. So this would be family law disputes, where I think there are going to be dramatic increases in the mediation of family law disputes of all kinds. I also think that we are going to see a dramatic increase in the mediation of probate and estate disputes because of greater acceptance that mediation preserves relationships. And, I think that bankruptcy has now shown that there have been some very successful mediation of high-profile municipal bankruptcies. I think that is going to lead to an expansion into an area that traditionally has not seen much mediation.
In terms of non-litigated disputes, I think that, as we have seen over the last 25 years, there is going to be a very slow adoption by the general public as people become less and less confused over mediation and meditation. There is a strong western cultural bias against negotiation and peacemaking conflict in general. I think that bias will continue to impede growth of mediation. But I think there is going to be a slow erosion of ignorance as more and more people are educated. Mediation will become more and more mainstream a practice.
In the criminal area, I think there is a potential for explosive growth in mediation as the limits of retribution and punishment are recognized. So I think that restorative justice as a process will continue to grow in the United States. Of course, there will be continuing issues around constitutional rights, funding, types of cases, and resistance from the hardcorer people who do not believe in rehabilitation or that restorative justice is powerful. Nevertheless, I think that restorative justice is going to be a major area of growth in the next 25 years.
In community mediation I do not think there is going to be much change because of continued funding shortages. Although they do. brilliant and great work, the governments are not going to be supporting units them. It’s going to be very hard to find money to continue to support these programs in any meaningful way greater than what exists today.
Internationally, again, I think there is going to be a slow growth typically in track one cases where the foreign service officers or diplomats are negotiating with each other. History suggests that they have not liked mediation; they have not been fond of it. They think are good negotiators themselves. Where I see tremendous growth in international conflict mediation is in track two and track three diplomacy. After the fighting ends, there is going to be a huge need for capacity building and civil society. Teaching people how to resolve their conflicts, how to reconcile, how to deal with the aftermath of war, and they are going have to do that themselves because the diplomats will have long gone after the fighting stops.
In terms of mediators, I think we will see over the next 25 years a continued stratification of mediators. There is going to be a slow recognition of advanced degrees and experience as factors in mediator selection. There will be a reduced reliance on retired judicial officers as mediators. Because people will recognize. as they are recognizing now, that people with advanced degrees in conflict resolution, dispute resolution and mediation typically have more knowledge about how to resolve conflicts that people who simply come off the bench with no training whatsoever.
I think mediation will remain a highly personalized service and will be based on referral sources. I think that mediators will continue to depend upon referral sources for the work. We are not going to see an broad-based marketing or advertising. It’s going to be, like any professional business, based on people knowing people.
In terms of career tracks, I think that young people interested in mediation are still going to have go out and work for 10 or 15 years, get some gray hair before they can actually enter into a mediation practice. Although, I do think the opportunities for mediation skills will develop.
Where I think the most interesting developments will be in the next 25 years is in mediation training; not to teach people how to be mediators, but to teach them emotional intelligence, negotiation skills, and conflict resolution skills. Mediation training has proven to be extremely effective as a way of developing those aspects in our culture. So I think that we are going to see emotional intelligence slowly becoming more accepted as an attribute that is important to develop in students and young professionals. I think I see that mediation training will start reaching out to significant population, such as prisons where I’ve been doing a lot of work over the last five years, in schools where I’m starting to do a lot of work. I think that that the dispute resolution skills, listening skills, empathic listening skills–things like that–will continue to expand in the schools is as a way of reducing bullying and school violence.
I think that HR professionals will begin to see mediation training as an effective way of dealing with low emotional intelligence in the workplace. And finally, I think organization expansion of ombuds practices where people are called in to act as honest brokers to resolve disputes within organizations.
So I think the future of mediation is bright, but I do not think it is going to be explosive. I think it is going to slowly work its way into our culture and into our society. In 25 years,I think we will see many more people practicing mediation and many more people trained in mediation. Of course, the effect of that will be to help people resolve conflicts peacefully, efficiently, and effectively without having to resort to the courts