Mediation On-Line A Newsletter from ADR Resources http://adrr.com/adr9/049a.htm Volume 5, No. 2a (December 2001) In Search of an Occupation From: smarsh@adrr.com Subscribe

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.

• "Marketing mediation, or any of the ADR techniques, as an exclusive profession, means creating another closed activity, another quasi-legal profession. When that happens (as it is happening), then the alternative is lost and people who need alternative help will have to look around for something else."
• First, marketing mediation does not necessarily an exclusive profession make. It just makes it a better known alternative dispute resolution process, something  that is totally lacking today. In 1992, the National Institute of Dispute Resolution's survey of public awareness of mediation revealed that only 2% of respondents mentioned mediation as a way to resolve disputes. But 62% chose it over litigation and arbitration when they were told how the three alternatives worked. So a little public education about mediation can only help the public make a better choice, thereby opening up the market for mediation which would give more mediators an opportunity to make a living which would make the profession more desirable to more people.
• Second, marketing mediation will not create a closed activity. How we choose to certify and/or license mediators will contribute to this if we do not do it carefully. Meanwhile, the inexorable take-over of mediation by the legal profession that has been going on since the "new age" of mediation began with the Pound Conference in 1976 guarantees that mediation will definitely become a closed activity. If mediation is fully taken over by the legal system, we can be assured that no one without a proper legal degree will be allowed to practice mediation.

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 http://adrr.com/adr9/048a.htm

• This would be an absurd situation given that being a good mediator has nothing to do with being a good attorney or judge. In fact, as we all know, the qualities that make a good legal professional might very well be the same factors that would make them horrible mediators. So, be afraid, be very afraid of the day the legal profession completely takes over mediation.

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 http://c-solutions.org/ for an example (and darn, they need something like sco.com for an url: c dash solutions dot org is too hard to remember for many people). http://c-solutions.org/who_we_are.htm 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).

• On the other hand, marketing mediation can awaken the public to its potential and free it from the legal profession. The more the public chooses mediation over litigation, thereby fulfilling the promise of the NIDR survey, the greater chance there will be for more people to practice mediation.
• But we have to hurry. The odds are in favor of the legal profession. While there are those who do not wish to make this an "us" versus "them" situation, the unfortunate truth is that in the absence of any effort on our part to separate the legal profession from the mediation profession only helps hasten it being swallowed whole by "them."

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.

• Lest we forget, mediation is NOT a branch of the law. The courts resort to using mediation as a tool, and the more they do so, the more the perception is that mediation is part of the legal system. And perception has the illusion of reality. Thus, by marketing mediation we can counter this false impression, informing the public that mediation is a process distinct onto itself and totally independent of the legal system. By doing so, we create more opportunities for people to use an alternative dispute resolution process while helping build a profession.
• The future is ours if we choose to make it so.

Actually,

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.

Regards,

Stephen

http://adrr.com/

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