Gorilla in the room: the dividing lines in mediation practice

the gorilla at the mediation tableLast week’s annual spring meeting of the ABA Section on Dispute Resolution was endowed with an optimistic title: “ADR: Building Bridges to a Better Society”. Despite the noble sentiment it carried, something else – unwelcome and ignored – was present.

It was there in the plenary meetings and in the sessions I sat in on. No one explicitly named it, but plainly there it sat: the dividing line that separates one practitioner from the other. It was there when the famous scholar declared that cases involving legal issues are best mediated by attorneys only. It was there in one of the workshops when a facilitative mediator declared an evaluative intervention to be “wrong” and “bad mediation”.  It was there when a law professor dismissed lawyers – the original dispute resolvers – as flunkies and functionaries of a heartless judicial system. It’s the line that runs straight between attorneys who mediate and mediators who don’t practice law. It’s the line that separates facilitative mediators from mediators who evaluate. It’s the line between theory and praxis. We ADR professionals pay lip service to the values of community and collaborative effort; but the reality is otherwise for those willing to look more closely.

Other lines divide us, too, along the borders of gender and race. Women and people of color remain excluded from premier ADR panels. Women, who face gender-specific hurdles when it comes to negotiation anyway, confront particular disadvantages when it comes to the selection of mediators who assist at negotiations. Meanwhile, in the recent issue of the ABA Dispute Resolution magazine, dedicated to diversity, and which arrived the day before I departed for the spring meeting in New York, the concluding page of one article (a critical look at the lack of diversity in ADR’s upper echelons) faced an advertisement for a prestigious training organization with head shots of trainers who were white and male, with only a single woman represented among them. Yet still at the conference I heard an honored guest speaker look back on a moment in history when women faced barriers in ADR as if that time belonged solely to a long-ago past and not to the present.

It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.

So, in the words of Joan Rivers, and mediators everywhere:

Can we talk?

11 responses to “Gorilla in the room: the dividing lines in mediation practice

  1. Thanks for this Diane. Cogent, perceptive and wise, as always. I attended the race and gender sessions, as well as the event with Abigail Disney, Walt’s grand-niece, who produced the stunning documentary film Pray the Devil Back to Hell (http://www.praythedevilbacktohell.com/v3/). We are, of course, not post-race, post-gender or even post-Jewish -Protestant or -Catholic. We’re CLEARLY not post-sexual preference nor post-Muslim, -third world, or post-red state or -blue. We are a rambunctious bunch, we conflict resolvers, and I think that’s a good thing, though we sometimes forget to separate the people from the problem or to ask our fellows what’s beneath the surface of the simmering disputes. Power, I suspect, fear, a lot of simple sadness, and a desire to find our profession an “outfit” which we can all wear and which everyone can respect. Thank you for starting the conversation. Let’s keep talking until the next conference and see whether, at a minimum, our disputes have matured if not disappeared. GREAT to “meet” you though I feel we must have been sisters before time began.

  2. It certainly is encouraging to have someone bring this up! Examining one’s own biases, prejudices, and stereotyping as a person and as an organization is not a pleasant undertaking but its the only way to grow. Assessing where you are on the “practice what you preach” scale can be humbling but it can also inspire necessary change in order to facilitate true justice.

    I agree with VP that power, fear and sadness lie underneath but I also think the need to compete and win is deeply embedded in us. For goodness sake, it started at conception so it’s no wonder! Survival of the fittest means just that: competition. But where does competition fit into dispute resolution? Aren’t we there specifically to eliminate or minimize it?

    I’ll be watching this discussion with much interest.

  3. Vickie, you always make me blush. Thanks for your praise – it means a great deal to me. Perhaps next year’s conference will confront the gorilla in the room. Leaders of the ABA-DR however don’t, I fear, read blogs. We online rabble-rousers need to take our fuss to a different forum. Let’s see what we can accomplish between now and then to afflict the comfortable.

    Kathy, thanks for your comment. Confronting the gorilla within can indeed make for some uncomfortable moments – it’s a painful but necessary exercise. Sadly, I don’t see enough of us “walking the talk”.

    I for one though don’t think it’s necessary or even desirable to minimize or eliminate competition. There’s nothing intrinsically wrong with the desire to win or to compete. My job is to make sure that people don’t squander opportunities or leave value on the table.

  4. Diane,

    Great post! Well written (as usual). Well conceived. To the point without being obnoxious and arrogant. Brilliant!

    Here’s my favorite part:

    “It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.”

    You are so right. When practitioners of an art/science don’t practice the principles among themselves, how can they (we) hope to use them to help others.

    Thank you for this insightful observation.

  5. Guy, I so appreciate your comment. Thanks for letting me know that this post struck a responsive chord.

  6. Joyce Krutick Craig

    Your observations are right on point. This was my first time at an ADR section meeting. As a woman who became an attorney in 1969 I’ve faced many barriers and I have been fortunate to reach the pinnacle of my prior profession (I was a U.S. Administrative Law Judge with the Social Security Administration and the first woman elected to the board of directors of the Association of Administrative Law Judges). When I was appointed as an ALJ there were 12 women among 1200 judges. Now there are several hundred. I watched during the meetings and plenary sessions as an outsider looking in and felt the tension – a woman seemed to be in a difficult position, even though a woman leads the section. I also noticed the distinct preference for “shuttle diplomacy” over other forms of mediation, many of which are much more popular in the “real world.”

    I would hope that as a group dedicated to reaching solutions among parties with differences, the section can ultimately come together and reach an equitable solution to its own problems.

    Joyce Krutick Craig
    U.S. Administrative Law Judge (Retired)

  7. Joyce, it’s really good to hear from you, and I thank you for adding your voice here. Perhaps this might be a good theme for next year’s spring meeting? I’d been mulling over writing a letter to the section head about my observations regarding the conference, and your comments have encouraged me to do so. I think the time has come to address these divides within our community.

    Thanks again, Joyce. I’m honored that you visited my blog and took the time to share your views.

  8. Hi, Diane – You’ve touched on many issues so well – thanks for bringing them into focus. While I’ve worked and shared values with lawyer and non-lawyer mediators alike, something seems to happen when practitioners start thinking about the field more generally. Then you run into efforts by lawyers in some states to restrict mediation to attorneys, or people from counseling or planning backgrounds to push out other types of mediators. It’s quite futile since the market exists for a range of approaches, personalities and professional backgrounds.

    Your point about the lack of diversity is still right on, though I’ve been involved in discussions and projects about this for 20 years or so. Lots of talk, little action, no change.

    All my best — John

  9. FTP: “It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.” Brilliant!

  10. Just found your site. Great article, WOW! I’m hooked. TY

  11. Santino and Stephen, thanks so much for making my day! This is what makes blogging all worthwhile.

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