Introduction
The success of alternative dispute resolution (ADR) programs such as mediation, arbitration, and restorative justice over the last twenty years has had much to do with the faith and wisdom of judges and legislatures willing to take a risk. In many places, mediation and arbitration are no longer “alternatives” but an institutionalized and normative part of the court system. While some still see ADR as a roadblock to the courtroom, most do not. Law schools now include ADR in their curricula; judges use mediation programs as a first step in many legal processes; and legislative bodies approve new or expand existing programs every year. Although this institutionalization of ADR created awareness that led to a boom in practitioners, this has not necessarily led to more opportunities for professionals to make a living.
Some of the effects of taking ideas intended to keep people out of the courthouse then bringing them in through a new door are just beginning to surface. This author contends that the institutionalization of ADR may be having some unintended consequences for the public who use these services and practitioners looking for a future in ADR.
Decreasing client self-determination
One of the basic premises of mediation has always been client self-determination. The principle of voluntary participation was central to most early professional and scholarly writing about mediation. It was believed that the voluntary nature of this processes was its core strength. If participants had “buy-in” from the beginning, then the likelihood of coming to a satisfactory and lasting resolution would be increased.
Voluntary participation in ADR programs was and, to some extent, continues to be less than proponents would hope. Therefore, requiring participation in mediation and other ADR programs was seen as the most efficient way for the public to become aware of the processes and benefits. Mediation and arbitration programs were made mandatory for the same reason that parents make children try all the foods on their plate, “if you don’t try it, you won’t know if you like it”. As acknowledgement of the importance of self determination, most mediation programs only required attempting the process, but stopped short of requiring settlement. Arbitration programs have been less flexible and, in most cases, a client’s only recourse to an unsatisfactory decision has been appeal.
In either case, the unspoken message to the client is that the court would prefer the matter to be settled using the ADR process. Since most people are minimally involved with the legal system, promises that not settling in mediation will not affect any later courtroom decisions or the ability to appeal an arbitration decision are likely to seem unrealistic. The client may think “If you didn’t want me to settle in mediation/arbitration why make me do it first?”
This is not to say that asking clients to attempt ADR should be eliminated. In fact, with increased awareness of ADR processes among attorneys, educators, and the public, it may be the case that voluntary participation problems are all in the past. It may be that what needs to be required is information about all the settlement options available. Although most available research demonstrates that participants are satisfied with mandatory ADR processes, many are also satisfied with their attorneys and traditional court processes. Imagine the potential satisfaction and resulting quality of agreement from a truly voluntary ADR program.
Keeping costs low and the market closed
Another unintended consequence of the institutionalization of ADR is the impact it has had on what practitioners are paid for their practice. Funded court-based programs and non-profit agencies that serve as referral sources have maintained a predominant share of the marketplace for three decades. Having programs provided free or at a reduced cost to participants was important in the beginning for the same reasons as compelling participation, because ADR was just a good idea and no one was really sure if and how it would work. If the courts were going to compel citizens to participate based principally on their beliefs, it seemed unfair to charge much if anything at all. Thus, many older court-based programs were provided free of charge to clients and practitioners were compensated by the courts either as full-time or contract employees.
More recently implemented court-based ADR programs tend to be “client-pay”, demonstrating a growing acceptance of the value of these processes and the practitioners who conduct them. Despite this newfound appreciation, anecdotal evidence suggests that the fees established by state governments or local courts generally do not reflect the amount of time ADR professionals spend on a case. This is especially true in relation to the level of case management expected of mediators and arbitrators. Many otherwise billable hours go uncompensated under most current systems but have to be spent making and returning calls and emails, looking up addresses, and arranging calendars and finding meeting space. This situation can leave practitioners in a dilemma as to how much time they can actually spend devoted to case management issues for court-referred cases in contrast to other revenue generating activities. Even if they were to be compensated for these hours, most ADR fees are lower per hour than attorney fees.
Both of these above situations make practice much more difficult for ADR practitioners working outside the court system or who choose not to take court-referred cases. If a practitioner’s specialty is in an area already served by a funded program, their likelihood of getting cases is low. Practitioners who work in client-pay areas are affected by the court rates, since those who may choose to charge higher rates or bill for case management hours are financially less advantageous than the court program. The only option that these ADR professionals have is to create some added value for their clients over the court-appointed practitioners, but these extras may be hard to explain to clients or become so costly to provide, it eliminates their benefit for the practitioner.
As with most other professions, experts tend to develop in particular ADR specialties. These fortunate few rarely have to worry a great deal with finding their next case or ensuring that they are paid a sufficient amount. What sets these practitioners apart in many cases has been their ability to network inside and outside the system and build an expertise in a related field that they can transfer to an ADR practice. In areas where attorneys can choose an ADR professional for a case instead of taking appointments from a court list, these experts will often be selected. This limits opportunities for “unknown” practitioners to develop their network and demonstrate their expertise. In a court-based system this phenomena is especially problematic for non-attorney mediators, who may come from a variety of disciplines including mental health, human services, business, education, or the sciences. The network for individual practitioners in this diverse group is less likely to include those who select the mediators (e.g. attorneys) and because the process takes place in a legal context, attorneys are more likely to choose another attorney because they “know the law”. It would be a very rare instance where a client would challenge his/her attorney’s choice of a mediator.
All these issues of cost tie directly back to the issue of self determination, if a client sees the value of a service, recognizes the cost associated with that service, and is willing to pay for that service, then a marketable service exists. However, if the same client is provided with similar low or no cost alternatives and is compelled to use the service, even those willing to pay the higher price are more likely to opt out of the higher cost service. It seems that if the marketplace for ADR is flush with eager, experienced, high-quality professionals that the referral source would see that the value to the clients is in the quality of the services that can be provided rather than in keeping the costs low.
Less about what we’re not, more about what we are
Of all the unintended consequences of institutionalizing ADR, this may be the most ethereal. Although most ADR practices and practitioners began in a parent discipline (law, psychology, social work, etc.), they have advanced enough now to at least be considered “greater than the sum of their parts”. Over time, most ADR practices have developed their own set of rules, ethical codes, and professional standards, which govern the individual practices. In the development of any profession, the setting of standards is a necessary step towards achieving recognition by other professions of a higher status. Although mediators, in particular, have been keen to be recognized by their parent professions as separate but equal, the unintended consequence has been a process of defining what mediation is “not” rather than what it “is” or “should be”.
Professional standards for mediators, as with their opening statements to clients, often include phrases like “not a judge”, “not a therapist”, “not making any decisions”, “do not control the outcome”, and “can not give legal advice”. While all these are true and important for all involved parties to understand, it is also laundry list of negatives. Listening to a mediator’s opening statement seems to lead to the question, “So what do you do?” This question is much more difficult to answer, not because mediators do not know, but because the explanation would be unfamiliar to the clients. It is easier to explain to parties how mediators are not like professions they do know about rather than explain practices with which most people would be unfamiliar.
This point is where the unintended consequence becomes important. If mediators, in particular, are constantly cross-referencing related professions in their speech and thoughts, that would appear to keep them from focusing on delving deeper into mediation practice itself. If an airline pilot kept telling himself, “I’m not a farmer” over and over again, eventually he would find that he was thinking more about farming than flying and only a foolish or unaware few would get into his plane. So if a mediator keeps saying, “I’m not a lawyer”, she may find that she is so focused on not being a lawyer that she unintentionally forgets to be a mediator in the process.
At the core of all of this focus on developing rules and codes for what ADR professionals are not, is the need for external recognition by courts, legislative bodies, and other professional groups. In the search for professional status, it seems that some in the ADR field have abandoned the notion that the parties are supposed the experts in most ADR processes. If “impartial third parties” cast themselves in the role of expert and are held accountable for the outcomes of “their” processes by other professionals, courts, and clients, then most of these standards are important. If these “impartial third parties” allow the clients to be the experts and let the clients retain ownership of the process, outcome, and longer-term implications of their decisions, then a truly alternative form of dispute resolution will re-emerge.
Conclusion
While this is not intended to be a definitive list or a deep critique of the field, it is intended to be a conversation starter. Although the reliance on ADR methods by the court system grows every year and the number of practitioners in the field grows with it, there are still many professionals not able to “quit their day job”. Rather than seeing this as a personal shortcoming, it seems important to investigate the possibility that historical and structural issues play a role in the future prospects for the field. While it may be the case that the “A” in ADR was always a matter of your relative perspective on the mediation process, it may be time to revisit mediation’s roots as a true alternative to court and not just as another door into the courthouse.
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