The Uniform Mediation Act: A Trojan Horse?

The final draft of the Uniform Mediation Act has been adopted by the National Conference of Commissioners on Uniform State Laws and is to be presented to the American Bar Association for adoption in February of 2002. The Commissioners convened about three years ago and sought to develop a code that offers order and a suggestion of consensus about mediation practice. While the UMA does not itself carry the force of law and is not obligatory, the intent is clearly to encourage, persuade and grease the pipelines for state legislatures to adopt a statutory scheme that follows suit. Review the latest draft online at www.mediate.com/articles/umajune01draft.cfm

For some, congealing a uniform understanding of mediation practice and standards gives a long-desired sense of symmetry and legitimacy that purports to fend off the chaos and confusion of multiple views and disparate statutory schemas that looms over the field. Overall, that purpose is not without some merit. Yet, some skepticism remains over the ramifications and implications of the UMA. Is the Act like a Trojan Horse, holding within its’ belly foreign agents poised to descend on the field?

The UMA is a fait accompli, what’s the big deal? At this juncture, regardless of whether or not the UMA is embraced or lamented, it appears to be a fait accompli. Some continue to usefully engage in negotiations over details and wording on topics such as the confidentiality of the process and the defined role of the mediator. (See Jeffrey Krivis, “The End of the Cold War: The Marriage of Mediation and The Court System”, May, 2001)

This essay is less about the particulars than it is the overall historical significance of the shift from away from the original intentions and purposes of mediation symbolized by the adoption of the UMA. This is about how the revolutionary notion of mediation, whereby individuals, organizations, and communities seize the opportunity to effectively manage and self-determine their own issues and conflicts, is now becoming absorbed by the legal system and the established order.

The inexorable truth. In our techno-rational society, there is an inexorable truth: all sources of vital energy, especially those which are subversive, must be co-opted, diluted, redacted, homogenized, and cut to fit pret-a-porte. (See R. Benjamin, “Mediation as a Subversive Activity”, www.mediate.com/articles/subvert.cfm, 2000). Mediation is no different. Just twenty years ago it was considered a counter-cultural quirk—a bastard child with no parents; now all the professions—law, mental health, business— want to adopt mediation and claim it as their own creation.

Originally envisioned as an alternative to the traditional legal system, mediation is now the object of a leveraged take-over by the legal profession and is quickly becoming just another cog in that system.

This pattern is not so unfamiliar; much the same thing happened to mediation’s first cousin, arbitration. As Tom Stipanowich, the CEO of the Center for Public Resources, an authority on arbitration and one of the advisors on the UMA, has wryly noted, arbitration, like mediation, was also originally intended to be an informal and efficient alternative to the traditional legal system. Over time and the many incarnations of the Uniform Arbitration Act, the process has become encrusted with legalisms that make it almost as costly and cumbersome as the traditional legal system it was intended to relieve.

Similarly, the UMA appears to be a step in the descent of mediation into something other than intended. The only way for mediation to avoid the same fate as arbitration is to recognize the risks of over-formalizing the process and to press for the preservation of some semblance of the core purposes of mediation. The UMA is not bad or even wrong, but it may hold within it the seeds of demise.

The Irony. There is more than a touch of irony attached to the formalization of mediation symbolized by the adoption of the Uniform Mediation Act. In large part, alternative dispute resolution modes in general, and mediation in particular, arose in response to the limited ability of the traditional established professions to effectively address the complex issues and conflicts that surfaced in our culture in the 1960’s and 70’s. Be it increased pressures on families or the allocation of natural resources, and environmental issues, or workplace disputes, the formalism and linearized focus of the established professions precluded the kind of systemic, integrated approach that was required to manage these matters. Lawyers, counselors and business people were educated and encouraged to practice within the bounds of their narrow discipline. Their thinking is best characterized by the adage: “if all you have is a hammer, the whole world looks like a nail.”

Simply put, many complex issues are not susceptible to resolution by simplistic court dictums and determinations. Seldom are they strictly legal matters—there were social and economic ramifications at every turn. The intent and inspiration for mediation practice is to view disputes outside of the strict constraints of the legal dispute resolution paradigm; mediation is a kind of safety valve or escape hatch out of a bogged down and often myopic system. Many times, for example, in divorce or environmental disputes, courts and lawyers are not only ineffective in managing the dispute, but actually exacerbate the conflict. Mediation allows for a more systemic and thoughtful approach and gives individuals and communities more direct responsibility for the required problem solving.

The politics. All of the appointed Commissioners are from the legal profession; some have practiced mediation, some have taught, some both, and some neither. Although involvement has been solicited from other professional disciplines and professional mediation organizations outside of the legal profession, such as The Academy of Family Mediators and The Society of Professionals in Dispute Resolution, (both of which have recently merged into The Association for Conflict Resolution), and some of the participants have been non-lawyers, the proposed Act in name, purpose and design is clearly a legal affair. And, even though the Act is ostensibly limited in focus, “… to provide a privilege that assures confidentiality in legal proceedings…”, it cannot help but influence mediation practice in all matters and contexts—not just those already in the courts. For that reason, the UMA must also be recognized and appreciated as a political document.

Like a dictionary defines words, a uniform code defines behavior. To paraphrase Voltaire, he who compiles a dictionary of words, sets meaning and constructs reality. Whether unwitting or intentional, so too do the drafters of the UMA effectively define mediation practice. No matter how narrow the Act’s purpose, those definitions will necessarily lap over from the legal context to other matters that are not the subject of formal adjudication and the style of mediation will unduly be conformed to a more legalistic approach. For those matters already in the legal system, mediation is already tending to become nothing more than an adjunct process regulated by the courts and losing it’s systemic dimension. A perhaps unintended, but nonetheless serious consequence of the UMA, is that mediation is likely to be more closely associated with, and brought in under the auspices of being legal practice and the overall effectiveness of the process limited thereby.

In the early years, lawyers and judges showed little or no interest in mediation. For the most part, mediation was ignored or dismissed as a passing fad. With the exception of a few states, judicial interest was languid until relatively recently- the mid 1990’s- when many judges and legislators began to observe the usefulness of mediation in judicial administration—moving cases. Now, hallmarked by the UMA, the legal profession purports to not only recognize mediation, but to effectively stamp it as part of legal practice. If the legal profession were intentionally maneuvering to co-opt mediation practice, there could be no more deft strategy than the pursuit of the Uniform Act.

There is no allegation of a cabal or organized conspiracy on the part of lawyers to take over mediation. At least no more so than the effort of mental health professionals to fit mediation into counseling as the extension of their systemic orientation, or business executives and administrators who claim mediation techniques as an integral aspect of their organizational development and consensus building curriculum. In point of fact, all of those disciplines and others as well— e.g. physics, chemistry, biology, philosophy, theology, the humanities, sociology, anthropology—have contributed useful theory and thinking frames to the development of mediation. That is what makes the process special and unique and why preservation requires mediation not be seized upon or held captive in the camp of any particular discipline.

Here’s the kick—with the legal profession and the ABA as a friend to mediation, who needs enemies? The lack of malevolence on the part of any particular disciplines to own mediation does not reduce the risk of injury to the field if any of them are allowed to claim ownership. History is being revised at this very moment. History is nothing more than a series of revised versions, spins and renderings of a story by those who have access or control of the presses at any given time. And, in a legalized culture such as ours, the legal profession wields considerable power, and like a bear in the woods can sleep pretty much anywhere it wants. The ABA can pretty much re-define mediation. The American Bar Association is not the enemy, but their size and power can nonetheless twist and contort mediation practice into unrecognizable forms.

The legal profession has been busy. In just the last five years, in addition to the adoption of the UMA by the American Bar Association, there has been the formation of the ABA Dispute Resolution Section, law schools have developed various national competition activities—off-shoots of moot court— in negotiation and mediation, and there has been an increase in the number of Journals dedicated to dispute resolution that encourage student writing. None of these developments is negative per se, but all suggest a mobilization that effectively redefines and often distorts the face and style of mediation practice. In some instances mediation is turned on it’s head. For example, more than a few law student and faculty articles and essays suggest that lawyers invented mediation. Others presume and treat as accepted fact that lawyers who practice mediation are subject to the same Canons of Ethics as all lawyers. The argument that mediation is not, and should not be viewed as the practice of law has seemingly slipped off the radar screen of issues for discussion.

Similarly, the recently devised law school mediation advocacy competition ironically gives little emphasis to the role and responsibility of the parties in mediation (they are not present), or the mediator who is present mostly as a stand-in or straw party. The focus of the competition is on the lawyers’ effectiveness in negotiating in the mediation context. The conceptual design of the exercise brings us full circle back to the role of the attorney as the central figure and director of the settlement process. ‘Mediation advocacy” is a denigration of the original intent and purpose of the mediation process. Law students heading for practice are allowed to think that mediation is nothing more than another negotiating tactic—that is not entirely wrong but it is nowhere near the whole of it.

To conclude…some of us have to stand in front of the proverbial tank. There is no sense in being naive. There is no reason to believe that this field of mediation— to which many of us have dedicated our careers—should be singled out for any special treatment in history, no matter how worthy or noble our original intentions. If the Bible and the Constitution are open to interpretation, then nothing is or should be sacred. Yet, notwithstanding the odds against accurate historical recording and the inexorable truth of cultural homogenization, those few who have some rememberance or who have come to the field with some belief that mediation reflected a different and important approach to managing conflict that includes multiple disciplines and respects peoples’ ability to make competent decisions for themselves are obligated—at least for a moment— to stand in front of the proverbial tank.

There is a real risk that, assuming states do adopt the Act, lawyers will tend to treat the provisions as the last word of how mediation is supposed to be practiced, and those who are not lawyers. will too quickly defer and presume that mediation is the sole province of legal practice. It may be going too far to say the Uniform Mediation Act is a Trojan Horse, but neither is it a friendly pony at the petting zoo. It carries within its’ belly notions that are likely to significantly alter the original values and purposes of mediation practice.

                       

Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >