There's an old saying. "Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.” Will mediation fall into this trap? There’s every reason to believe that danger is real.
For the past half century, I’ve been privileged to actively participate in the evolution of our field, primarily in my home state of California. I’ll start with what I know.
Yes, mediation here began as a movement. Fearless practitioners and trainers like Ken Cloke brought their passion for and dedication to peacemaking. They proved it was possible to bring voluntary resolution – and often even reconciliation – to disputes as intimate as divorcing couples, and as widely devastating as countries in the midst of civil wars.
Yes, mediation here has become a viable business. Savvy leaders like Bruce Edwards – for many years Board Chair at JAMS – have built successful mediation businesses. Many have grown to provide effective mediation services not only across the country, but increasingly around the world.
Will mediation degenerate into a racket? The risk of unethical individual mediators will always be with us. As mediation became more common here, the greater risk came from resource-starved courts and governmental entities pressured to undercut ethical mediation practice in a drive for efficiency.
Fortunately, California has also served as a laboratory to test effective ways of institutionalizing key process safeguards. For example, since 2003 our Rules of Court have required that “A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties…[and] must…Refrain from coercing any party to make a decision or to continue.”
In 1997 we enacted of our main Evidence Code chapter governing mediation. An associated legislative intent comment explained clearly how “…the focus is on preventing coercion. As Section 1121 recognizes, a mediator should not be able to influence the result of a mediation or adjudication by reporting or threatening to report to the decision-maker on the merits of the dispute or reasons why mediation failed to resolve it. Similarly, a mediator should not have authority to resolve or decide the mediated dispute, and should not have any function for the adjudicating tribunal with regard to the dispute, except as a non-decisionmaking neutral.”
This chapter was enacted unanimously by our Legislature. Since enactment, it has been unanimously upheld five times by the California Supreme Court.
The effectiveness of California’s mediation systems over the following twenty years led to a significant political milestone in 2017. A serious legislative proposal had been recommended to weaken our carefully-balanced statutory protections. Along with thirty other major statewide organizations, the entire statewide organized plaintiffs' and defense bars joined together to file a rare joint statement defending our existing protections. They said "Confidentiality promotes candor, which in turn leads to successful mediation…and the use of mediation is critical to successful out of court resolution of disputes." Here was concrete evidence that mediation had become an accepted norm in California and had achieved its goal of effectively serving both plaintiffs and defendants.
In 2018, dozens of statewide stakeholders collaborated to craft and add a new statute. Evidence Code section 1129 now requires attorneys to provide disputants the following short summary of California’s mediation laws or an equivalent, and to obtain their written informed consent before representing them in mediation.
- All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.
- Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.
- A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.
- A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.
Yes, mediation will spread and increasingly become an institutionalized norm. Implementing statutes, regulations, and court rules will be adopted in new countries. Mediators and mediation organizations will expand to provide their services in new places.
For whatever reason, California appears to foster innovation the world finds useful. Technologies developed by companies like Google, Apple, Facebook, eBay, and Twitter have spread around the world, and help explain how California has become the world’s fifth largest economy.
California's success also offers important models for ensuring that mediation does not degenerate into a racket. Guarding against this will take vigilance and dedicated work by all of us.
Guiding principles and background on the development of California’s laws and court rules are available under “Crafting ADR Law and Policy” (ronkelly.com/pg6.cfm
) at the author’s website.