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Mediation On-Line

A Newsletter from ADR Resources
Volume 5, No. 2a (December 2001)
In Search of an Occupation


Stephen R. Marsh Picture

Subj: Re: In Search of an Occupation
Date: 11/21/01 11:22:48 AM Central Standard Time

My responses to a essay on mediation as an occupation.  The essay excerpts (for context) are in teal and my responses are in black.

"I was torn between answering or not. I always appreciate your comments." I found myself somewhat torn as well.

I think that mediation can be marketed in several ways.

(a) as something that school kids are competent to be trained in and to practice on a regular basis. (Your kids in grade school are told this regularly, btw).

(b) as something to be done by any professional (using any excessively inclusive definition of professional) with 40 class room hours of extra training.

(c) as something useful, with varying skill levels, dependent on training and experience.

To market mediation I think that (a) and (c) are relevant.

The "(a)" definition has resulted in an explosion of public financing and training. In twenty years the impact will be significant.

The "(c)" definition is a way to market individual mediators ("(a)" already markets the concept) without making it an exclusive definition.

In court-annexed mediation this is already the de facto standard as the gatekeepers (the judges and the attorneys) tend to reject people without law degrees. Gatekeeper resistance is more important than certification initiatives.

Speaking of which, I have put my thoughts on certification of mediators on-line at

The reality is that any professional skill provides "value added" mediation, somewhat randomly. Attorneys are aware of it when they see it from an attorney-mediator. I became much more aware of it when I was mediating and the parties reached closure because of skills I had gained doing volunteer service in a church run charitable job placement initiative. That got me thinking and I began to realize that *any* special training or life experience might come in handy some time. Realizing that someone else's special skills are useful is often a feature of the knowledge of the gatekeeper, not the actual value. (i.e. attorneys recognize the value of their own perspectives, miss that of others).

Further, no certification system I am aware of would close non-attorneys out of the process -- only close them out of the court-annexed mediation part of it (which, admittedly, means that non-attorneys would be closed out of the paying work, and out of work they are qualified to do).

I should note that in some very important areas, such as environmental mediation, non-attorneys are the norm. Of course this isn't court annexed work, but it does pay.

Visit for an example (and darn, they need something like for an url: c dash solutions dot org is too hard to remember for many people). shows one attorney in the group, and the attorney part is not the important part of the background.

(btw, if you are doing a web sight, the "bio" vs. "resume" sections are excellent).

What you need to do by public education and advertising and outreach is:

(1) Establish mediation as something that you go to as a normal step -- not as an admission of failure.

(2) Establish mediation as something you do before you call your lawyer.

These are the two "business" and "community" steps that are not ingrained.

Consider family counseling (and the allied family counseling mediation). How often do people go in for marriage counseling before it is "too late?" They just let the problems get worse until they are so bad they can't avoid doing something.

Business conflicts often go the same way.


I have to say "the future is ours -- if we can get it to come to us first" -- the whole thing about making mediation "dispute resolution" rather than "court annexed settlement facilitation" is in getting conflicts to mediation before the lawyers are called or before suit is filed.

I do know from personal experience as a litigator, it is very hard to get people to go to mediation first. When you can get one side, the other side often doesn't believe that there is enough of a problem until a suit is filed.

I did have a delightful experience with an opposing counsel in a case involving trade secrets, covenants not to compete and an employee who had some issues -- but the issues all turned out to be that the employee discovered that a different class of employees had been given thousand dollar loans, so he wanted a thousand dollar bonus to make up for the fact he had not been offered one. I had everything necessary to having a great transformative moment (I represented the employer, the other attorney the new employer) and nowhere to go with it. We resolved things, but the look "under the hood" turned out to be an interesting waste of time. I think that opposing counsel retains his orientation of trying to resolve the real issues as well as the legal ones (he was pushing for the full explanation and exploration) but was amused to see how it played out.

The real problem with community mediation is that most of the community mediation centers I see do not pay the mediators involved (other than the center's director) and train people to expect mediation of conflicts for nominal fees. Great if mediation is a hobby or a religious calling (ok, I belong to a faith that uses only volunteer lay clergy and my Catholic relatives all have vows of poverty), but not a great basis for a profession.

With the business community, I'm not sure how to get businesses to budget for external mediators. In a real sense, many of them are correct in concluding that the need for a mediator means that someone has failed in their management or negotiation skills.

I'm hoping to see Accenture or a similar group succeed in selling a long-term mediation contract to a group of businesses, and to see that contract save more money than it costs.

That is the breakthrough that will make the difference in driving mediation out of the volunteer and court-annexed niches.

At least that is my take on the issue -- which I've developed as I've seen more and more groups bring in mediators when the conflicts have gotten heated or intransigent. Hospitals and practice groups. Partners in firms. The mainstay of public conflicts -- especially environmental.

In that regard, I have the following thoughts, having come full circle on what the public needs to know:

(1) That mediation is useful, and that it is one of a number of dispute resolution techniques.

(2) That mediation and other dr techniques are provided by people with valuable skills.

(3) That the level of skill can be matched to the difficulty of the problem, and that not all skills fit the same problems (shuttle negotiation =/ universal solution; transformative mediation =/ universal solution; etc.).

(4) That determining the level of skill is done by amount and type of training and experience.

Beyond that, we don't really have the infrastructure or experience as a society to have firm guidelines and credentials.



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