This is easily one of the best, all-time great quotes about mediation:
When we begin our mediation training and practice, we often hear (and speak) of the magic of mediation. When it works, it truly is wondrous. It’s easy to see why a mediator feels like a wizard with supernatural powers, enabling lambs to lie down with lions. Based on my experience in the realms of magic and mediation, here is my hope.
Once upon a time, if you could take a cup of water, put it in a box, push a button, and make that water boil — without raising the temperature inside the box — you’d have a miracle on your hands. Ditto for talking to someone, or even seeing them in real time, on the other side of the planet — or even in outer space! How magical is that! And yet, thanks to technology, even the youngest child is jaded by these daily experiences.
My fondest wish is that our social evolution keeps pace with our technological progress, so that the peaceful resolution of disputes will similarly become as commonplace as microwaves and mobile devices. Then it will no longer seem that mystical forces -or card tricks, or magic pennies — are needed to bring together the bitterest of enemies for a common purpose.
From Jerry Lazar, a mediator by day and magician by night, who explores the magic of mediation at his delightfully titled blog, Fight Nicely.
Attorney Nancy Hudgins, who shares the wisdom won from her experience mediating thousands of disputes in her blog Civil Negotiation and Mediation, today describes her first mediation. It’s a story, wonderfully told, about discoveries — how one party discovers empowerment, another closure, and a mediator discovers the quiet satisfaction in helping others help themselves.
It made me wonder how many other first-time stories await their telling.
While Nancy’s story stands in part for the hope mediation restores to parties, my own first mediation resembled more closely Geoff Sharp’s “The Extra Mile“.
I got my start in community mediation, and believe me, there is no tougher initiation into the trenches of conflict. Here you gird yourself for the escalating battle between neighbors over boundary lines and unleashed dogs, or the full-scale war of feuding teens in a public housing project. Fought in deadly earnest, these disputes emit a lethal heat.
My first mediation involved a dispute in which one of the parties was a woman with profound physical disabilities. The medical attendant who was supposed to arrive failed to show up for the mediation. During a break, the woman asked my co-mediator and me for assistance in the bathroom; we helped her empty her urostomy bag.
Although time has blurred the other details of that day, I remember one thing vividly. That experience revealed something no mediation training prepared me for — not the corrosiveness of anger or the frustration of tears — but instead, despite the hardship and indignities that daily life inflicts, the courage that inhabits the human heart.
Our local Whole Foods Market carries a brand of high-end chocolate bars in assorted flavors which boast a variety of exotic ingredients, including — I am not making this up — smoked applewood bacon. In so many ways, that’s just wrong.
Let me set the record straight. I like chocolate. And I love bacon. In fact, a lot (which doomed my brief flirtation with vegetarianism).
Bacon pairs well with lots of food. Chocolate doesn’t happen to be one of them. See, no matter how good something may be, it’s not a perfect match for everything.
Despite the fact that I’m a professional mediator, it’s also one of my concerns about alternative dispute resolution. Like bacon with chocolate, it’s not always the right choice. But some in my field are convinced otherwise.
While attending an ADR conference a few years ago, I struck up a conversation with a fellow mediator. He chastened me when I used the phrase “alternative dispute resolution”. “No,” he corrected me, plainly insulted, “it’s not just an alternative, it’s appropriate dispute resolution — not like litigation, which is never appropriate, as far as I’m concerned. I want people to think appropriate instead of alternative when they hear ‘ADR’.”
Unfortunately the workshop I was leading was about to start, so I left without a chance to tell him what I thought. That was probably a good thing, since I was about to offer an impolitic response. What arrogance, I thought to myself, how can anyone insist on the absolute appropriateness of private resolution for all disputes? It’s like treating every disease with antibiotics regardless of the cause or the symptoms.
That mediator is not alone in thinking this way. Some mediators, I know, think that “alternative” marks ADR as inferior or third-rate — litigation’s red-headed stepchild. Google the phrase “appropriate dispute resolution”, and it’ll return over 20,000 hits. Frequent use has begun to legitimize it. This is no cause for rejoicing — not when you stop to read the legitimate criticisms leveled against ADR and overzealous ADR practitioners, or consider the reminders of the value and role of litigation. It becomes harder and harder to insist that the “A” in ADR should mean “appropriate”.
[S]omeone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.
I raised my hand.
“Why,” I asked, “do you want to restrict our clients’ access to the justice system?” once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator.
It wasn’t a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.
It’s time at last to reclaim or insist upon “alternative” as the “A” in “ADR”. Among other things, “alternative” means “choice”, “one of several possibilities”. This notion of choice comports with ADR’s history with its roots in legal reform and other movements which sought to increase, not decrease, the choices available on the road to justice. Pioneer Frank Sander, while envisioning the multi-door courthouse with its many entrances leading disputants to the process fitting best their dispute, never intended that the door to litigation be closed. In delivering his 1976 paper, “The Pound Conference: Perspectives on Justice in the Future”, he reminded his audience of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.
The lack of choice which ADR’s modern offspring have produced runs contrary to the promise of choice that once distinguished ADR. Let’s put the “alternative” back in ADR and let people choose for themselves what’s appropriate — whether to arbitrate or mediate — or, yes, to litigate.
An upcoming episode in March will cover “‘Certified’ Doesn’t Mean ‘Qualified’ - Choosing a Qualified Divorce Mediator”. I can’t wait to listen in, especially when the show mined a similar vein last November with “Choosing the Right Divorce Mediator” (in MP3 format), where you can tune in to hear aspersions heaped on the talents and expertise of mediators who are not attorneys. Look, I’m all for mediators doing everything they can to promote themselves and their work, but let’s not do it at the expense of fellow mediators, shall we?
So let’s clear some stuff up once and for all. Repeat after me:
Barack Obama is not a Muslim (and so what if he were?).
There were no weapons of mass destruction.
And you don’t have to be an attorney to be a competent divorce mediator.
Jim Melamed, co-founder of Mediate.com, arguably the ADR field’s best known and most influential online resource, has published “Obama’s Message: Mediation’s Political Triumph“, an impassioned and compelling panegyric to a presidential candidate and the influence on politics and culture of the mediation movement.
The latest edition of the International Dispute Negotiation (IDN) podcast, a series of discussions on hot topics in cross-border commercial conflict resolution, is now available for listening or downloading.
Lord Woolf spearheaded judicial reform in England’s civil justice system, his goal to make justice more accessible to all. His report, Access to Justice (1996), laid the groundwork for the widespread acceptance of mediation and other forms of ADR in England. In the interview, Lord Woolf describes the principles that informed the judicial reform movement and also discusses his views on mediation (”I wanted the litigants to be in control, not the lawyers”).
From the interview:
[We] tried to identify what was it that the litigation system should do. And the first one was to resolve disputes. And the second one was to do so justly.
If you seek intelligent discussion and thoughtful analysis of the issues most relevant to lawyers in international practice and in particular to dispute resolution professionals everywhere, look no further than the International Dispute Resolution podcast series.
The Mediator Magazine, published monthly, delivers news, profiles, columns, and polls dedicated to the art and practice of mediation. Although many of the articles focus on the work of mediators in the U.K., it holds a universal appeal, covering issues of concern to mediators regardless of where in the world they practice.
This month’s issue includes “Global Standards ‘Impossibly Cumbersome’”, a critical look at the efforts of the International Mediation Institute to establish a global mediator competency certification system; “Law-Law better than War-War?”, a discussion of the results of a Mediator Magazine poll that asked readers whether lawyers always make the best mediators; and “Craving Collapse”, which considers whether an economic downturn could be good news for mediators.
The Mediator Magazine is a flash-based site, so I’m not able to link directly to the articles cited here. You’ll need to visit the site yourself to access these and other articles. It’s just too bad this great online resource relies on flash and lacks an RSS feed or an email subscription service so that readers could be notified when new issues are published.
Nonetheless, The Mediator Magazine is worth a look and even a bookmark in your browser.
(With thanks to my friend across the Atlantic, Justin Patten, for alerting me and his other readers to this online publication.)
“use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.
and described the transformative effects of mediation, particularly:
its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.
Sander described a courthouse which offered many avenues for justice, uniquely suited to the dispute and the disputants. Sander’s paper helped launch a revolution in ADR and the American legal system.
While ADR today is institutionalized in courts throughout the U.S. and the world, not all would agree that the result has been better access to justice.
Professor Childress raises serious questions about a justice system that seems to place greater value on settling cases than on serving justice. He evokes New York subway vigilante Bernhard Goetz, who shot four youths in 1984. Several years earlier, Goetz was mugged and beaten by three youths in a Manhattan subway station. The court offered him the opportunity to mediate his dispute with one of his assailants, but Goetz declined.
Childress speculates that “[i]t is quite possible that Goetz was not snapped by subway crime or ‘kids today,’ but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve”. He reminds readers that “The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution”, citing Albert W. Alschuler’s “Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases“, 99 Harv. L. Rev. 1808 (1986) (not available free online).
From “Mediation with Mugger”:
Goetz’s unwillingness to rely on a legal system that had invited mediation with his attacker — as well as the public’s initially favorable response to Goetz’s act of violence — suggests what can befall a society whose legal system fails or is perceived to fail.
Although Goetz’s act suggests a lesson about retribution and criminal justice, it also offers a broader lesson about procedure. Goetz’s despair and indignation may not have been entirely the product of his sense that his attacker had gone unpunished. More fundamentally, Goetz may have concluded that no one in the legal system had been willing to listen and to determine whether this mugger deserved punishment. In place of a prompt hearing at which a judge or jury would decide what had happened, this system had offered a conciliation proceeding designed to encourage the victim and the victimizer to resolve their differences and go on their way. The apparent procedural default of a bureaucratized and overburdened legal system may have fueled Goetz’s sense of injustice as much as his misperception of the substantive outcome.
I agree with Childress that the courts serve a crucial role, and that the Goetz case does raise disturbing questions that the mediation field should not shy away from. But I wonder whether the Goetz case serves as the best example of a very real and vexing problem. It involved a criminal complaint, not a civil one. Should the failings of a criminal justice system serve as evidence to condemn the mediation and settlement of civil disputes?
In addition, the problem may not have arisen from the offer of mediation but instead with the failure of the court to communicate with a victim of crime. Goetz was sent home without ever learning of the fate of his attacker. According to “Mediation with a Mugger,”
[Goetz's assailant] was ultimately punished for his crime. He later received a three-to-nine year penitentiary sentence for additional robberies committed after his release. At last word, he was still in prison. The victim of the mugging, however, was never told what had happened to his attacker. He thought that the case had ended when he declined the offer of mediation.
This seems more of a bureaucratic failing — a failure to keep a victim informed. While there are many problems that can be laid at the doorstep of ADR, is this one we want to add?
No matter what, an important lesson emerges here. In opening multiple doors to resolution, courts must remember that one size does not fit all. A process that fails to fit is not a just process. Let the process be appropriate for the dispute and those most affected. We must always be asking ourselves, is our priority to settle cases and clear dockets? Or is it to serve justice?
…When you go to appear in front of a judge with a lawyer, your lawyer does all the talking and you don’t get to be heard. Whereas with mediation you have a voice and there’s options…and things get worked out on both sides…
Despite its length, this little film speaks volumes, serving as an eloquent reminder to lawyers and judges of mediation’s power to give a voice to those whom the legal system all too often silences.
[Editor's note: In the blogosphere you have to move fast. I'd planned to get this completed and posted last night but instead elected to watch the Patriots vanquish the Jaguars on the road to the Super Bowl, a decision this Pats fan does not regret for one moment. Carrie Menkel-Meadow got here first, but I'm still weighing in with my own two cents.]
Authority wields an irresistible power, as Robert Cialdini recounts in the well-known classic, Influence: The Psychology of Persuasion. In Chapter 6, “Authority”, Cialdini describes a highly successful TV commercial for Sanka, a brand of decaffeinated coffee, in which actor Robert Young, known for playing a doctor on a popular 1970’s television drama, Marcus Welby, M.D., warns against the health risks caffeine poses and recommends Sanka to the viewing audience:
From the first time I saw it, the most intriguing feature for me in the Robert Young Sanka commercial was its ability to use the influence of the authority principle without ever providing a real authority. The appearance of authority was enough. This tells me something important about unthinking reactions to authority figures. When in a click, whirr mode, we are often as vulnerable to the symbols of authority as to the substance.
While today we make light of the phrase, “I’m not a doctor, but I play one on TV”, it nonetheless remains difficult for some of us to distinguish between the actor and the role, between apparent and real authority.
In all fairness to Clooney, who did not, as previous reports indicate, say, he would tell the WGA “you have to live with this and get over it”, Clooney at least does appear to appreciate that mediation is not an adversarial smackdown. Sources indicate rather that Clooney’s “stance has always been to find common ground and not alienate each other.” His heart’s in the right place.
Nonetheless, what bugs hell out of me as a mediator is how all too often people like the well-intentioned Clooney claim expertise to mediate disputes — as if mediation is a task that anyone can perform, rather than a professional service requiring training and preparation to master.
Learning to mediate is hard and demands commitment — as I hear often from the hundreds of people I have trained over the years to become mediators. At the end of every training I have taught, almost every participant — from the retired judges to the practicing lawyers to the social workers to the corporate executives — tells me that they anticipated learning to mediate would be easy — only to discover that there’s far more nuance, complexity, and skill involved than they ever anticipated.
Among the knowledge and skills that a professional mediator possesses at a minimum are:
an understanding of the dynamics of conflict;
the fundamentals of negotiation, including familiarity with both distributive and integrative bargaining;
techniques for facilitating joint problem solving;
communication skills, including effective listening and questioning skills;
techniques for addressing impasse and barriers to agreement;
and standards of practice and professional ethics
I do have a proposal for George Clooney and the other actors who have volunteered to mediate the WGA dispute. Come take a mediation training with me. Not only will you learn some great life skills, but you’ll come away with a better appreciation for the work that professional mediators like me perform. And who knows? If you ever get to play a mediator in a movie, you’ll be ready for the role.
I often hear critics of mediation dismiss it as “touchy-feely”.
Yet as the results of one recent poll conclude, half of commercial disputes “get personal” as hearts win out over minds in business-related conflict. This suggests that it may be neither possible nor prudent to ignore the emotions that conflict triggers when it comes to successfully resolving disputes.
In “Emotions and Problem Definition in Mediation“, Professor Nancy Welsh, blogging at Indisputably.org, discusses the value of offering parties in mediation the choice of addressing emotional concerns, explored more fully in a soon-to-be-published law review article she has co-authored with influential ADR scholar Len Riskin. Welsh observes about parties,
They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.
As Welsh points out, the question is how:
Len and I decided to adopt the concept of “core concerns” introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe — pretty convincingly, I think — that it can be quite complicated to deal directly with emotions in negotiation… Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.
Beyond Reason is a text that I use when I teach and is one that I recommend often to clients. It explores a topic that other negotiation texts have neglected or paid scant attention to: how to deal constructively with emotions in negotiation — both your own and the other person’s. It provides numerous examples from both business and family life, making the techniques relevant and meaningful to anyone who negotiates — or who assists others in negotiating — to produce real-world results.
For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.
(Emphasis mine.)
Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator’s role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)
Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.
Implying that the services of so-called “attorney-mediators” are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.
In the grand scheme of things, these are harmless errors that should prod professional mediators to do a better job at marketing and packaging their services and educating the public about mediation’s advantages. Of far greater concern though to the field is the questionable use by a debt collection agency of the words “legal mediation” as part of the name of its business, reported today by Chris Annunziata at CKA Mediation & Arbitration Blog.
Chris observes, “As a libertarian, I am loathe to advocate governmental intervention, but shouldn’t the bar in these states regulate the use of the term ‘legal’ and ‘mediation’?”
While I agree with Chris that state bars should monitor the use of the word “legal” by businesses to describe their services, I am not sure that it’s any business of the bar to regulate the use of the word “mediation” — not when so many professional mediators are not attorneys and there is no requirement that mediators in private practice must also be members of the bar. Moreover, while it is true that a very few state courts do certify certain classes of mediators in court-connected programs, no U.S. state currently possesses the power to license mediators or to regulate the private practice of mediation.
This instance illustrates how urgent the need is for the mediation field here in the U.S. to move now to develop a formal system to qualify mediators and regulate the profession. The future of the field depends upon it; public confidence demands it. We can no longer argue that regulation will thwart innovation in a still developing field, that it is unnecessary or will be too costly, that it will discourage otherwise qualified individuals from entering the field, or that mediation itself resists definition.
We should act now, before others define mediation for us. It is, at last, time.
This is easily one of the best, all-time great quotes about mediation:
Attorney Nancy Hudgins, who shares the wisdom won from her experience mediating thousands of disputes in her blog 
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