Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?

Mediation careers: road to success or straight to the poorhouseLast summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:

Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.

Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.

Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.

Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.

Von Wrangel asked,

Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?

Wellington mediator Geoff Sharp points his readers to a study recently released that provides the statistical evidence for von Wrangel’s concerns. In a report titled, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, presents data that the supply of mediators far outstrips their demand and paints a distressing picture of the realities of mediation practice for the hundreds of aspiring mediators who emerge each year from trainings and degree programs across the U.S.

Velikonja singles out mediation trainers for some sharp criticism:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

She even anticipates the counterargument mediation trainers often trot out:

While it is true that mediation may be a useful skill in our work and familial lives, it is likely that fewer people would spend hundreds or thousands of dollars on mediation training without the expectation that training could lead to a career change.

I at least am one mediation trainer who is brutally honest when people contact me for advice on becoming a mediator. I cringe every time I hear someone tell me that they plan to leave a well-paying job to become a mediator as soon as they finish their basic mediation training. I routinely tell people not to quit their day jobs, although many of them seem determined to do so, buoyed up by an unreliable optimism. And I despair when I get the inevitable email from a recent university graduate with a degree in conflict resolution, desperately looking for work as a mediator and frustrated because their college placement office could not help them find a job.

I don’t believe (yet, at any rate) that we should stop training people to be mediators. I still believe that the skills are useful in workplace, civic, and family settings. But Velikonja’s report should be required reading for anyone who is thinking about becoming a mediator. And I hope mediation trainers take the time to read it, too.

9 responses to “Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?

  1. Wouldn’t it make sense for a lot of these people to use their newly acquired negotiation skills to create a set of extra responsibilities at their workplace?

    Failure to do that might demonstrate that their negotiation skills are not quite up to solving real world problems.

  2. Michael, the problem is that people aren’t taking these trainings to learn skills they can apply in the workplace. They’re taking these trainings because they believe they provide a direct path to a profitable career in mediation. The vast majority of people I’ve met who take mediation trainings have aspirations to become mediators — and not because their primary hope is to apply negotiation skills on the job. People who want to acquire negotiation skills take negotiation trainings, not mediation trainings.

    (I also imagine that transformative mediators will have an issue with your focus on negotiation skills in basic training or your assumption that basic mediation trainings typically provide training in negotiation — not when negotiation is hardly the central focus of a transformative mediation training. Let us not forget that there are several models of mediation practice.)

  3. Timothy J. DeHaut

    A similar case was made last week at the Irish Commercial Mediation Association (ICMA) Annual General Meeting. It seems the market in Ireland is flooded with mediators and there is a shortage of mediations. However, taking the Irish Commercial Ct statistics, only about half of the disputes going to mediation are being settled. This isn’t the happy result of “80% of mediations settle” that is often proclaimed. Perhaps the answer isn’t less mediation training, but more. And better quality. If more mediations are settled, there will be happy consumers of mediation. In turn the word might get out that mediation works and generating more mediation business. However, the realities of the mediation need to be realized. As a young US [Irish (LLM)] law student nearing entry into the market, I think the reality is that I would not be able to generate enough business as a mediator in any market – Irish, US, or otherwise. I’d absolutely love to do it, but it just doesn’t seem prudent or reasonable. As a mediator, I think you need to be able to offer something to the parties beyond a bit of training. The people getting the big mediations, say for instance in the construction sector, are civil engineers with 15 years experience who then went to law school, practiced construction law for 5 years, trained extensively as mediators, and then started mediation. I think we want those people doing the mediations. We want mediation standards to be kept up – hopefully yielding more settlements. Would one expect to become a judge just out of law school? Even more poignant, would one expect to be a S.Ct. justice right out of law school? I think Diane is right when she says that we have to be honest about the process. And let’s be honest: One should not expect that after basic mediation training, one will have a full career as a mediator. But that’s not a reason to stop gaining skills. Moreover, law students need to know how to be advocates at mediation; a skill far different than being advocates in court. If more law students are taught what mediation is, its benefits, and how to properly advocate in mediation, there should be less cases going to court. I think this advocacy in mediation has been underemphasized. Similarly, as stated, mediation skills are useful in other contexts. Mediation training is a transferable skill. Finally, getting mediation training early in a career is a good thing, not a bad thing. Having those skills in your toolbox will allow for a number of good things to come about. As you go through your career, you can use the skills learned in mediation training throughout your career. Then when you have subject matter skills and experience you can become a mediator with that training and knowledge you already have. Then mediation isn’t an afterthought.

  4. Matt Fenichel

    I’m going to chime in here, because I’ve lived this in many aspects for a number of years. The question should we continue to train mediators when there is a woeful lack of mediations taking place is a not a simple question.

    I am a mediator. I have been a mediator since 1983. I am also an arbitrator. I have been an arbitrator since 1984. I am a Dispute Resolution Specialist since 1986. I hold numerous certifications, and I am degreed (BS Interdisciplinary Studies) as well. This only tells you a minor part of my story. But time and space limit additional background.

    I have conducted numerous consumer to consumer, consumer to business, business to business and gang task force related mediations. I’ve also done extensive community mediation, in some very unique matters. I have not always been successful in bringing the parties to consensus, but I have accomplished some amazing resolutions working with dedicated parties. I have taught mediation, negotiation, arbitration and facilitation programs in a wide range of settings, from academia to corporate. I have received public accolades from the Governor of one state, and the AG’s of two. I reside in a state where it is against the law to practice mediation or arbitration for compensation except in limited disciplines unless you hold a JD. I was unsuccessful in my bid to attend law school due to low LSAT scores on two occasions. However, I have had ten years of first hand experience both as a Para-legal and court liaison.

    If you are still reading I appreciate it. I had to offer some back ground for my response.

    A growing number of providers are offering anything from 5 hour certificate courses to Masters Degree programs in mediation. There are other programs in dispute resolution, conflict resolution, Med-Arb and so on. Many are based in schools of social science or theology, while an increasing number are based in law school, business or a combination thereof. Lest we not forget there are a number of franchise programs entering the arena as well, offering franchised business opportunities which basically allow one to offer (or at least market) an alternative to litigation. I’ve looked at many of these options as well.

    For a short time I was able to support myself doing mediation, and dispute resolution in different forums. Recently I have had to reluctantly step away from all related activity. It is hurtful because I truly L-O-V-E and believe in these processes and their practice.

    It became evident to me early on for the most part, the majority of ADR users were those attempting to avoid the lengthy time involved in litigation and the cost associated with it. This was how it was promoted as well. Most mediation was offered by not for profits and they were training mostly volunteers to facilitate the process.

    As things evolved, lawyers jumped on the bandwagon seeking not to loose the cases to other practitioners and venues, and also, in a few cases to offer a better way than pure litigation of an adversarial nature.

    But even most lawyers couldn’t find enough compensated mediation to make a full go of it.

    The evolution continued and increasingly more advanced mediation and related ADR programs began to pop-up. Gangs, feuding sects and even feuding families were pointed to mediation for the ultimate resolution. For a while, mediation was being touted as the cure for marital discord. But increasingly it was realized that as a process it needed to be accompanied by knowledge (as Tim DeHaut alludes to this) something we don’t unfortunately require of lawyers or judges generally. Marriage mediation became the darling of the Social Worker, Psychologist and Psychiatrist set. It gave birth to a whole new type of practice where you would find lawyers co-practicing with social workers and/or psychologist promoting themselves as a “seamless” mediation practice.

    The evolution has now come full circle. Today mediation is taking on a life of its own, not as a process but as a discipline. Mediation and Dispute Resolution itself, has become over exposed in the wrong manners, and remains underexposed in the right venues.

    I am not suggesting mediation no longer has its usefulness. I believe strongly that every court in the land owes it to it’s constituents to vet any and all cases for ADR prior to hosting a trial. I do not think just anyone should be allowed to practice mediatoin, but I’ve met darned few lawyers that should. What I mean is that mediation failing to live up to its intended purpose and usefulness has been turned into the cash register of everyone from community colleges to universities, and from not for profits to franchisors, as well as lawyers. It’s a shame.

    I contemplated a number of these programs at the master’s level, believing it might provide the path to a full time lucrative career in the field. But the more I investigated, the more I found what I already knew; there weren’t a lot of full time practitioners making a significant living at full time ADR. I already had the background, and was teaching the programs. Most of the folks teaching just proved my own research and point; they could teach the programs, but they couldn’t make a living applying the skills. This most unfortunate reality holds true more now than even a year ago.

    The question I continue to ask is why?

    The answers I arrive at are sad and of course open to both opinion and interpretations. I must add here in my own defense that I am a wannabe lawyer (of sorts). I do not have any deep seated disdain for lawyers or judges. Until recently I worked pro-bono side by side with them to assure the best possible outcomes from the legal system. Reality is mediation, like most forms of ADR steps on the toes of the legal system, which is a huge bureaucracy. I hope we all know by now that while bureaucracies may serve a purpose, more often than not their priority is self-preservation.

    The American Bar association’s early adoption of and creation of an ADR section shows its supportive stance in general. It also gives life to the old cliché of keeping ones friends close, and ones enemies closer. By adopting a supportive stance, it also has gained a strong influence in its regulation, marketing and use.

    Few non-lawyer ADR providers have been properly trained in decision writing, any more than lawyers who’ve spend years learning the adversarial process can grasp a non-adversarial approach to dispute settlement. It has created an unfortunate impasse where the capability of ADR has been bound by the incapability of the more traditional legal system and its practitioners. Please note, I wrote system, not process. This is part of the reason there is not enough mediation work to support the number of practitioners in the field, let alone those in training.

    Another part of the equation I believe is most mediators, like lawyers are not marketers, nor are their advocacy skills honed to address the general public. If you go to a public concert or other event and begin to discuss mediation you will find few truly know (or care) what it is. Worse than that, some will know it in reference to marital counseling only, which further distorts its use and ability.

    Hopefully I have made at least some of my points here. Please be gentle on me if I have not, but feel free to comment on the concept of what I wrote. But before I sign off, I need to further one more intended point, that of education and opportunity in the field itself.

    I would agree with the other writers that it is better to educate than not. But, I would also agree we need to better educate those both in the field and out, consumers of the service as to what mediation (ADR in general) is, what it is not, what it can do, and so on.

    Perhaps most importantly I think we need to advocate for separating mediation from the legal oversight of the legislative and judicial arms that would sooner sweep it under the rug than embrace it.

    Please do not write me with stories of all the ADR related programs in the courts. From California to Maine from Florida to Chicago, I am familiar with a number of the programs, within the courts and out, and the overwhelming nature of these programs still preserves the “sanctity” of the adversarial system and ultimately the majority of case work for those who are members of the bar. Until a way is found or allowed, that is to say legislated, non-lawyers will have ongoing difficulty creating a career for themselves in mediation or ADR generally. Somewhere between total separation from the judicial world and total annihilation lies the answer to creating a mediation (ADR) friendly world.

    Thank you for your time and consideration.

  5. Pingback: Mediator Tech newsletter for june 2008 | Mediator Tech

  6. Hi
    The situation is the same in England. We’ve been providing mediation training and mediation for workplace disputes for 20 years. There has always been something like a 100:1 ratio of people wanting to mediate: parties willing to mediate.

    The vast majority of people in a dispute do not want mediation. I ask people we train to think about a conflict they’ve been in (easy) and then have they or would they opt for mediation – no, is always the response. People in disputes are turned off by the very things that mediators find positive.

    The time has come, surely, for the mediating community to take a long hard look at the facts. We are selling something – or offering it for free – that people do not want. So we have to change the offering. We’ll be doing that in the autumn, to take the mediation principle of listening and responding to what people need without judgement – and if that means adjusting workplace mediation so be it, if it gets more people into the room.

    Cheers

  7. Pingback: More on Mediating for Free(or … Giving the milk away, Part Deux) | mediatorinthemaking.com

  8. Diane, thank you for drawing attention to this fascinating article. And thank you to everyone who’s kept this conversation going. It’s been very enlightening for a novice like me.

    I think Urska places too much responsibility in the laps of the trainers, and not enough with the students themselves. There is plenty of readily accessible information about the challenges of entering and surviving in the mediation field. Yet many students do not bother.

    There is only so much that can possibly be done in a 40-hour training. I have lead a 3- to 5-day leadership training conference for years. I end every conference thinking about what I could do with another 3- to 5-days with my group.

    My trainers were very clear with us about the realities of trying to break in to this profession. But their message didn’t seem to be fully accepted (at least at first) by students who hadn’t yet done their own research. We couldn’t exactly spend a whole day just on this, and still finish the program with the necessary skills to function in small claims or elsewhere.

    I’ve written more about this, and Urska’s characterization of mediation as a winner-take-all market, over at my site.

  9. Rachel, great as always to hear from you. I just read your post, and it was excellent. In fact, I took the liberty of editing your comment, above, to add the link to it.

    I’m torn about your observation about the responsibility being with the students themselves to thoroughly research mediation careers before signing up for that mediation training. I agree that people do have a responsibility to do their homework in advance.

    But the problem is that not all training programs are equally ethical and some make claims that are dubious at best about the career prospects for those who complete those programs. This is further compounded by the fact that mediation training in the U.S. is wholly unregulated with minimal quality control. You and I both know that there are badly run mediation training programs out there, and there’s no one to stop them — even here in Massachusetts, the birthplace of “Getting to Yes”.

    Prospective mediators — i.e. the general public — may not know where to turn to get accurate information. And given the fact that mediation itself is unregulated, where can they turn? (Apart from bloggers like me who have made an effort to provide people with honest information to arm themselves and transform themselves into knowledgeable consumers of mediation training services.)

    For that reason I have come to agree with Urska that mediation trainers have an affirmative duty to provide information in advance about the state of the field and careers in ADR, and not on the last day of a mediation training.

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