Expectation and Regret – A Look Back At How Mediation Has Fared In The U.S.

Presented at the 7th National Conference of the Civil Mediation Council in London, England on May 2, 2013.

In May, 2013, I gave a keynote talk to the Civil Mediation Council in London for their 7th National Conference. The question I was asked to address was: “What should we in England learn from the U.S. mediation experience?” Said differently, what might others profitably take from the explosive growth of court, community and privately offered mediation over the last 25 years in the U.S.? What hind-sights can we offer now that, by some measures, both countries have succeeded in marrying mediation into their civil law systems and legal cultures and what regrets and appreciations do Americans hold? I used the occasion of this invitation to reach out to some of the veterans who helped develop mediation in the U.S. For three months, I engaged in a slow “talk-a-thon” in which I contacted some 40 people, many of whom I know personally, and others by reputation. I asked them if they would be willing to share their views with me on a confidential basis by doing a very brief survey followed by a 20-minute phone interview. Twenty-five of them responded. Five interconnected stories emerged, all of them full of smaller and larger paradoxes.

Story #1 – “The Decline and Decay of True Mediation”

With a few exceptions, most of the people I interviewed talked about a loss of first principles and an erosion of the fundamentals articulated three decades ago. “Mediation no longer looks like what we imagined,” one person said. “People see it as a numbers game,” said another. “It’s been a race to the bottom line, said a third, separate meetings, damages and remedies, just move the case.” As it has become institutionalized, legitimated and respectable, mediation looks and feels different both in the way it is described and the way it is applied. Some of the core values and premises that shaped our approaches at the beginning – voluntarism in coming to the table, a shift away from other experts telling you what to do, the repairing of fractured relationships, the idea that people can be the architects of their own negotiated solutions – seems to have eroded.

Story #2 – “The Pull of the Courts”

Of the people I interviewed, the vast majority have worked in or around America’s judicial systems as litigators, court officials, judges, or judicial adjuncts. Several helped pioneer well known court mediation programs. Even for those who had spent less time there, the influence of the courts on mediation figured prominently in every conversation. The collective story from the interviewees is one of blessing and curse. Judiciaries have beebn a powerful source of mediation diffusion and popularization. Once they started exerting serious gravitational pull, however, mediation changed. Courts and other bureaucracies adopt mediation for their own reasons, largely as administrative strategies for docket management, saving money, or reducing time to trial. The essence of this story is this: the courts have given a strong and important imprimatur to mediation but not without unintended and, for some at least, corrosive consequences.

Story #3 – “The Domination of Lawyers”

If “ownership” can be defined as a combination of “dominion and domain,” lawyers increasingly own mediation. With that comes the marriage of adversarial skills into the practices of negotiation, settlement, and resolution, perhaps a natural fit in many ways, but not quite the exact paradigm Fisher and Ury seemed to suggest in Getting To Yes (1981) and not quite the theory of mediation repeatedly described in 25 years of subsequent and often repetitious books. In my interviews, most mentioned one and sometimes two problematic aspects of the lawyer love affair with mediation. The first is simple: hegemony, a takeover of mediation work and a slow but steady disenfranchisement of non-lawyers. The second matter is attorneys “gaming” the process.

Story #4 – “The Profession that Isn’t”

Major professions like medicine, law and engineering, and even with what are sometimes called the more “minor” derivative professions like planning, policy analysis or counseling, have certain things in common. They have a reasonably developed body of specialized knowledge. They have evidence-based diagnostic tools. They have codified intervention procedures, a code of ethics, a career path for new entrants, and some level of public oversight or reassuring self-regulation with consequences for people who cheat or fail. Fields that have most or all of these tend to have higher levels of occupational legitimacy. When it comes to the development of a real profession, the people I interviewed hold contradictory notions. The larger majority of those I interviewed feel that mediators missed the boat and the moment to create a profession has passed. A very few of the people I spoke with think it still can happen. The overall story however is about what is missing: a professional platform that can legitimately unify many diverse styles, applications and practices together in a common affiliation.

Story #5 – “The Search for Identity”

“Identity” – psychological, social, professional, national — glues us together. It makes us definable and recognizable. Beyond the semantics of “dispute resolution,” “conflict management,” “ADR,” or “peacemaking,” mediators don’t have a unified identity. We don’t have a way of saying to the world who is kindred and who is not. What this leaves us with is a yearning for something that would distinguish the “us” from people who are not “us”, not in a pejorative way, but in a way that is somehow more factually and verifiably grounded. We don’t really have this. What we have instead are a lot of smaller micro-market places.

In Conclusion

I have probably painted the U.S. experience more negatively than I should but perhaps, as someone once said about Richard Wagner’s music, “it’s better than it sounds.” Much good has occurred these past several decades. On the other hand, the focus of this particular effort has been on hindsight, early hopes, and the corners of sadness that some of the U.S. pioneers now experience when you ask them. It is a reminder that, when we talk about “mediation,” we are dealing with something that is at once simple, complex and slippery.

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Peter Adler

Peter Adler directs ACCORD3.0, a group of independent consultants specializing in foresight, fact-finding and conseneus building. He is the former President and CEO of The Keystone Center and has held executive positions with the Hawaii Supreme Court, the Hawaii Justice Foundation, and Neighborhood Justice Center of Honolulu. Peter can also… MORE >