Mediation’s New Clothes

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This article was originally submitted as an academic assignment on December 16, 2016 to instructors Jeanne Cleary and Doug Thompson as part of the Mediation Internship Seminar, Graduate Programs in Dispute Resolution, McCormack Graduate School of Policy and Global Studies at the University of Massachusetts, Boston. It has been edited down for length.

This paper discusses pivotal elements of the 21st Century identity crisis within and about the American mediation industry. Together, the elements of identity, control and recognition, and commercial viability comprise the proverbial elephant in the room of American mediation. It can be argued that crises in mediation have been brewing since about 1953[1] when mediation began to be both formally practiced and openly suppressed in the workplace. Enhanced communication via the Internet thrust mediation into the modern world. Considered in its adolescence, American mediation now struggles with a great deal of practitioner and marketplace angst over industry competition for control.  Largely through empirical research this paper first frames three critical elements of mediation’s crisis. Next, addresses head-on the important though often avoided or dismissed tension around the intersection between legal professionals who mediate and any other professional who determines themselves to mediate.  The paper’s final section provides a brief discussion of industry stuck places and suggests practical ideas for becoming unstuck using creative approaches to business and marketing models. Just as there is no practical reason for an Emperor[2] to parade naked, mediators have no practical reason to be stuck with the limitations of a law practice approach to business. Nor is there a practical reason for valuation of mediation services to be based on volunteer or exceedingly low paid service roles or, to fear competition from high priced attorneys. Attorneys who mediate as part of their legal practice too need not have the marketing of their mediation services stuck by limitations of restrictive bar association rules. This paper closes by introducing a new business model opening the doors to commercial viability for all mediators. Of course, the greatest stuck challenge remains: individual mindset.

In Hans Christian Andersen’s iconic tale of the Emperor’s New Clothes[3] no royal subject dares point out the nakedness of the Emperor parading down the street. Collective denial seems to be acting as a protective mechanism for the Emperor’s subjects. After all, who wants to go against popular opinion?[4] In the end, a naïve child cries out, revealing the obvious. Yet, once the truth is revealed, the Emperor continues parading as if the obvious had no relevance. Is the Emperor saving face? Therein lies mediation’s greatest challenge: dealing with or denying the elephant in the room and what to do about it: move forward or continue to struggle under the guise of saving face.

Mediation’s obvious unaddressed crisis, the elephant, meets the naked Emperor first through exposing its identity crisis.

IDENTITY CRISIS: n.

1. :  personal psychosocial conflict especially in adolescence that involves confusion about one’s social role and often a sense of loss of continuity to one’s personality
2. :  a state of confusion in an institution or organization regarding its nature or direction[5]

Mediation’s identity crisis involves a range of challenges including description of the profession as either a field or industry. After six years of engagement with mediation groups and practitioners discussing the state of mediation, it’s clear the field vs. industry distinction represents a key syntax element of ownership, control, and perception about what mediation is, how it should be regulated (if at all) and which pre-existing profession (if any) should frame and control the mediation marketplace[6]. Though frequently avoided through polite silence, a sometimes hurtfully vocal battle akin to parent-teen separation anxiety is afoot regarding definition of mediation.

Before delving into the question of ‘field or industry’ it’s helpful to note three powerful questions dominating today’s discussions about mediation: Can mediation stand alone as a profession? If so, what does that look like? If not, why not and what should be done about that, if anything? Underlying these questions are more questions about the functions of mediation. For example, should mediation always, sometimes, or never connect back to the practice of law? Should mediation sometimes, always, or never place the process of law, or the interpretation of an insurance policy or other contract above the humanistic needs and goals of clients? Should law work alongside or usurp humanity in mediation? Whose interpretation of a contract matters in mediation? Who or what controls a mediation session? More questions exist about the framing and marketing of mediation such as: the practicality and ‘how to’ of forming mediation businesses; pricing mediation services in the face of the juxtaposition between non-profit volunteer organizations, court connected programs, and the high-priced law firm based mediation services. It’s no wonder the marketplace is confused and underserved. Practitioners impede themselves and the industry as they struggle for identity and prosperity through the impractical and out dated notions that mediation should look like, or become, a subset of the law. While these questions are beyond the scope of this paper, it’s important to keep them in mind when reading about the distinction of mediation as a field or an industry which, in turn, leads to a discussion about diversity as a primary strength of the mediation industry. Yet diversity in the industry is often used as a tool for furthering marketplace confusion.

Unlike most professions, mediation lacks clear and consistent identity in part because there is no regulating body. Mediators self-declare expertise. Training and professional organizations strive to provide standards of mediation excellence that are not uniformly applied or welcomed. Practitioners with advanced degrees presume and advertise mediator expertise just as their counterparts with little or no higher education do: based on a mere 30 to 40 hours of rudimentary mediation training. Certifying organizations often support assumptions about the superiority of those with advanced degrees through the flawed logic that an advanced degree makes a practitioner better able to connect with the energy in the mediation room. As if a degree, often in a loosely related field, supersedes the willingness and ability of one human to adroitly manage multiple other humans in distress.

Then again, when a contract is the priority of a mediation (i.e., with insurance claims, in the financial services, and other contract-based industries) facilitating humanity in mediation doesn’t much matter. Management of polite, authoritative process becomes the goal. Thus, the ability to connect with humans in distress, facilitating and empowering their self-determined outcomes is of little relevance. Lacking independent certifying boards governed by leaders who represent the diversity mediation provides, there is no-one to question assumptions about the alleged superiority of advanced degreed practitioners, other than practitioners who witness, are party to, or clean up after the failings of those assumptions. Therein lies an underlying source of the great identity battle about who and what defines the industry or field of mediation: the power struggle of a presumed parent against the determined strength and persistence of the independent adolescent.

This paper argues in favor of describing mediation as industry. Industry defined by Merriam-Webster.com encompasses, “diligence in an employment or pursuit; especially: steady or habitual effort” and “systematic labor especially for some useful purpose or the creation of something of value.”[7]  Contrasting with field defined as, “an area or division of an activity, subject, or profession” and “the individuals that make up all or part of the participants in a contest; especially: all participants with the exception of the favorite or winner in a contest…”[8]

Said another way, Industry suggests mediation, in all its forms, creates something of value. For example, through empowerment of individuals and self-determined outcomes. And, through facilitating contract disputes even when the individuals are more symbolic than relevant. This paper posits that mediation represents innovative approaches to communication, negotiation, problem-assessment, problem-solving, dispute resolution, and interpersonal relationships.  The creativity afforded participants applying mediation processes and/or skill sets in daily life is limitless.  Mediation knows no boundaries, save the moral and ethical concerns of facilitating the breaking of a law or ignoring imminent harm.  Mediators take on many roles, provide a range of services to a range of audiences. And Mediators often engage with the most difficult entrenched conflicts and personalities while simultaneously role modeling effective communication and problem-solving skills.  Skilled mediators create value by seamlessly facilitating, exploring, and teaching toward the unique energy, context, needs, and goals of others. Often, others in distress. Creating value unique to individual clients is what mediators do. There is no cookie cutter approach to, or result from, mediation. Mediation is innovation. The mediation profession is industry.

Adding to the field vs. industry conundrum is a preponderance of mediators, often dual-professionals, referring to mediation as a ‘field’. As if to suggest that mediation is a subset of their original training (advanced degree) in law, mental health, business, finance or some other primary profession. Merriam-webster.com appears to support use of Field[9] in the sense that a field is a segment of a larger, pre-existing profession subject to the structure, hierarchy, norms, traditions, and value sets of that profession. Ah, field works if mediation is in fact a subset of something larger or pre-existing. It isn’t. Depending on the source, mediation is traced back to ancient times and may well precede the formal legal process as we know it today.

Just as teens challenge adults on use of language attaching great significance to nuance, the discussions of nuance in language underlies the battle for mediation’s identity. For example, field is a pretty word: soft sounding, delicate. When compared to the strong sound of industry it can be considered that softening the descriptor of mediation is a form of microaggression representing conscious or unconscious bias towards fostering the belief that an adversarial approach to communication, interpersonal relations, and business is somehow stronger thus, superior. Just as weavers of invisible fabric fooled the Emperor, weavers of the notion that adversarial communication is necessary and superior fool the unwary practitioner and unknowing public.  

Syntax and microaggression are significant inhibitors to the growth of mediation and a bane to successfully marketing mediation as a stand-alone profession. For example, the importance of the distinction between industry and field gets to the root of challenges and opportunities of perception created by the intersection of the legal profession with the raw innovation and possibility of the adolescent industry of mediation. 

Other important microaggressive challenges include use of the qualifier ‘NON’[10], meaning worthless or unimportant, to precede the description of mediators who are not also lawyers or retired Judges. A recent industry institute[11] held a special workshop for NON-lawyer mediators. Does this title support division in the industry? Conscious bias? Microaggression? Power play? Something else? Attendees of the workshop, led by an accomplished mediator-attorney, would soon realize the title was designed to protect the free flow of dialogue among participants.  Emphasis on ‘NON’ was specifically used to keep attorneys out of the room. It was presumed that if attorneys participated, little would get done. Every point would be challenged. In this instance, participants left the event feeling appreciative for having received and unimpeded opportunity to exchange useful information and learn from a seasoned practitioner.

The acronym ADR too is problematic in that ADR presumes connection with the legal fields in that mediation is considered by attorneys and Judges to be an alternative to traditional legal process. The assumption being that an adversarial legal process is somehow a preferred, desirable, default, necessary, mandated, or more useful process. It isn’t. At this intersection is where mediation and law clash. Mediation generally presumes that people have the capacity to engage with important though difficult conversations, settle disputes, and resolve their own conflicts. Therefore, mediation is more likely the preferred process in many, if not most, conflict and dispute scenarios.  Just as parents may struggle with teens to ‘hold on’ to their children when it’s quite clear that letting go is in the best interest of both parent and teen, the legal field is struggling to hold on to something it never truly owned. In this case, mediation may predate the formal legal process by centuries. No Internet search on the history of mediation can verify when, or if, mediation was ever formalized as a range of approaches to difficult communication and dispute resolution.

A notable attorney turned mediator, David Hoffman, wrote in his article, Paradoxes of Mediation, “learning to practice mediation has presented me with the task of recovering the right-brain function.”[12] Hoffman is referencing his description about law school being “a process in which the left brain circles around the right brain and eats it.”[13] In defense of the good hearted and skilled attorneys striving to help clients avail themselves of ‘the better way’ that is mediation, their law school training may be partially responsible for deceptive use  of syntax appearing to support their original profession yet undermining their work in mediation. This paper asks these skilled professionals to gain new insight into the impact their use of syntax has on their credibility in the field and in contributing to holding on instead of letting go of mediation as it emerges from adolescent identity crisis into a more profitable and viable independent profession.

CONTROL & RECOGNITION

In the 2004 book, Beyond Neutrality, Bernie Mayer asks conflict resolution professionals to look at the hard questions around what may be holding the conflict resolution profession back[14]. Mayer refers to the field of conflict resolution thus, limits the precepts around the almost limitless innovations inherent in mediation. Nonetheless, the professional conflict identified by Mayer in 2004, remains today albeit in different forms. Mayer stated, “The field’s very identity and independence as a field of practice is under attack. In fact, the conflict resolution field is facing the prospect of being entirely absorbed into existing professional disciplines, particularly law[15].” Today, few mediators refer to themselves as conflict resolution professionals; we are mediators. Use of the word field is commonplace though may be one of many microaggressions contributing to marketplace misperceptions about what mediation is, who’s involved, and when it makes sense to engage with, or as, a mediator.

Mayer’s prediction about the battle over which professional discipline will absorb conflict resolution was an early warning sign. Twelve years later, in 2016, the industry of mediation is desperately fighting for independence. Today, it can be considered that the legal profession is actively engaged in efforts to usurp mediation through: naming and framing marketplace perception about what mediation is; how, when and where mediation is conducted; who qualifies as a professional mediator; defining qualifications; how mediators should form and market their businesses. For example, the use of ‘NON’ and ‘ADR discussed earlier are commonplace. Skilled practitioners downplay syntax as if one of the Emperor’s loyal subjects; part of the in-group pretending the Emperor is not naked.

Another control challenge mediation faces, is the financial ability of practitioners to engage on the governance level in the industry.  Practitioner associations are often run by governing boards made up largely of lawyers and retired Judges. Legal professionals are typically highly networked through cohesive, well-funded, industry bar associations and law schools. Mediators bring a range of diversity to the field that lacks similar organizational cohesiveness and centralized funding. Through fostering a pay to play network modeled after the legal field, growth in governance of mediation is relegated to those who can pay thus shutting out the creativity and innovation possibilities that industry diversity truly represents.

Mediation builds upon the most appropriate lessons from a limitless range of professions. For mediation to succeed as an industry embracing the strength and opportunities of diversity, leadership needs to reflect its practitioners and its targeted consumer bases. The ability and responsibility for realizing the best mediation offers lies within each individual practitioner. Mindset, like the Emperor’s clothes is invisible. We may not be aware that other’s notice our mindset stuckness, or that we undermine ourselves by denying its existence. To control the mediation industry is first, to control how one views it, and how one references the range of mediation’s possibilities.

INDUSTRY STUCK PLACES

Just as there is no practical reason for an Emperor[16] to parade naked, mediators have no practical reason to be stuck with the limitations of a law practice business model or to become stuck in volunteer or exceedingly low paid service roles. Attorneys’ who mediate as part of their legal practice too are limited by restrictive bar association rules and cultural norms. Mental health professionals rarely advertise or promote their services. In that case, does it make sense for the dual attorney or mental health professional to market their mediation skills separately? Something else?

The Mediation industry is open to a depth and breadth of tools that well exceed the limitations of the practice of law. In part because mediation builds from the most appropriate lessons learned from a limitless range of professions, including mental health and law, mediation is uniquely positioned to explode into a highly profitable and service driven industry. Every day mediated agreements, mediation processes, trainings and dialogues create something of value beyond the scope of legal precedent.

So why isn’t anybody making money at it? Why are there no resources to report industry gains and losses? No marketplace indicators? Clearly, no stocks or financial industry deals are involved. Why? Mediation is generally not thought of as a profit-making business. Why? Because the marketplace image of mediation is too closely connected with the limiting practice of law. Why? Because just as the Emperors loyal subjects never questioned his nakedness, preferring instead the misleading comfort of collective denial, mediators have not yet ventured into the world of profit. 

Collective denial in the mediation industry takes the forms of passive acceptance that outside of a specific mediation training, mediators can only gain experience through volunteer programs, low paying or volunteer court-connected programs, or through referrals from attorneys and mental health professionals.  After training, presumptions around building a practice too are limiting.  Many ‘practice’ from their homes which can be a safety risk for the practitioner and a turn-off when advertising to a larger commercial audience. Most mediators, despite their field of origin have limited to no business experience.

There is a better way to enter and sustain a presence in the mediation market and grow the mediation industry without blurring the lines between professions or being held back due to misplaced perception of a parental relationship with the legal field.  A new mediation business model is being tested in Massachusetts, the RoundTable Group (RTG) model. With this model, RTG acts as an umbrella organization that both markets and promotes mediation in targeted areas, screens prospective clients, distributes opportunities to mediate among a roster of independent practitioners, (very similar to the way non-profits schedule mediations), manages scheduling and billing, provides a physical location to mediate, and offers information sessions and skills training to the public. 

Practitioners maintain their independent practices in law, mental health, business or other fields, taking on RTG clients as their interests and schedules allow. Practitioners pay an annual affiliation fee depending on the level of services they want to benefit from with RTG. RTG provides fixed rate services to clients that practitioners agree to before becoming RTG affiliates. The bulk of the fixed rate fee is paid to the practitioner, with an overhead portion remaining with RTG. For example, for with a divorce mediation roughly 73% of the RTG fee is paid to the mediator. This contrasts largely with non-profit organizations that may accept sliding scale fees from clients, and results in mediators not being paid at all, or in receiving a small stipend usually in the range of $50.00. In MA, RTG mediators will take away approximately $200/hr. per family case.

Practitioner benefits include increased marketplace visibility, increased networking opportunities, opportunities to hone skills, opportunities to distinctly market their mediation services as separate from their law, mental health, or other practice without the overhead and headache of developing separate marketing materials etc. New mediators will enjoy expanded opportunities to hone skills and gain experience. This model offers the added benefit of beginning to keep mediator roles clear in the mediation market place. The RTG model is designed to service middle class individuals and small business with 0 to 200 employees. In doing so, the most hotly competitive segment of the prospective mediation market in MA, for upper middle class and wealthy individuals, is left to the independent practitioners. Once established, volume is anticipated to serve RTG practitioners well.

Details on how the RTG model works is beyond the scope of this paper. However, the fundamental difference in establishing an umbrella group is business. The RTG model entails market research and business planning methods used by entrepreneurs. Metaphorically, the adolescent Emperor (mediation), is breaking out of the limitations of ‘legal practice’ formation by dawning the very visible finely woven clothing of the business model.

As mentioned earlier, perhaps the greatest challenge mediation faces today is a stuck individual mindset. Getting unstuck requires the willingness and ability to do what mediators do best, create something of value for our customers.

ENDNOTES

Barrett, Jerome T. 1999. “In Search of the Rosetta Stone of the Mediation Profession.” Negotiation Journal.

Hoffman, Daniel Bowling and David. 2003. Bringing Peace into the Room: How the Personal Qulaities of the Mediator Impact the Process of Conflict Resolution. San Francisco, CA: Jossey-Bass.

Mayer, Bernard S. 2004. Beyond Neutrality: Confronting the Crisis in Conflict Resolution. San Fransisco, CA: Jossey-Bass.

MCFM. 2016. “Massachusetts Divorce Law for NON-Lawyer Mediators.” 15th Annual Family Mediation Institute. Massachusetts Council on Family Mediation, Inc.

Merriam-Webster. n.d. Merriam-Webster.com. Accessed December 15, 2016. https://www.merriam-webster.com/dictionary/identity%20crisis

n.d. Merriam-webster.com. Accessed December 11, 2016. https://www.merriam-webster.com/dictionary/field.

n.d. Merriam-Webster.com. Accessed December 11, 2016. https://www.merriam-webster.com/dictionary/industry.

n.d. Merriam-Webster.com. Accessed December 13, 2016. https://www.merriam-webster.com/dictionary/non.

Myers, Beth. 2016. Mediator (December).

n.d. Wikipedia. Accessed December 15, 2016. https://en.wikipedia.org/wiki/The_Emperor’s_New_Clothes.