Tuesday, November 27, 2007

In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past

Massachusetts mediators poised to make mistake in considering new language for Uniform Mediation ActIn April 2006, I reported that the Boston Bar Association proposed an amendment to the Massachusetts mediation confidentiality statute, Mass. Gen. Law. ch. 233, s. 23C. That statute protects from disclosure in a judicial or administrative proceeding "[a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person."

The BBA's proposal sparked an immediate backlash within the mediation community. What was radical about the BBA's proposed amendment was its change to the statutory definition of mediator. The current statute defines a mediator as "a person not a party to a dispute" who:

enters into a written agreement with the parties to assist them in resolving their disputes has completed at least thirty hours of training in mediation and either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years
The BBA's proposed amendment would eliminate these requirements and define a mediator simply as "an individual who conducts a mediation". At the time I condemned this proposal and argued for preserving the current definition.

As it turns out, the Boston Bar Association was right. And I was wrong.

And why that matters now is that today the mediation community in Massachusetts may be poised to make the same kind of mistake I did.

Let me explain why.

Some background first. A small group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting for the past year to consider whether to enact the Uniform Mediation Act ("UMA") here in the Commonwealth.

The UMA defines mediation as "a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute". It defines a mediator as "an individual who conducts a mediation" -- as did the Boston Bar Association's proposed language.

But a number of Massachusetts mediators who support the UMA want to replace its definition with the one currently in effect in the Commonwealth, along with some additional language.

A subcommittee of the Working Group supports the following definition:

A "mediator" shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator after such training or is accountable, after such training, to a dispute resolution organization which has been in existence for at least three years.

The phrase "dispute resolution organization" means a program with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a government agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non- employees on its roster.


As I said, adopting this language would be a big mistake. To see why, let's walk through each provision of the proposed language.

The written agreement requirement.

There is no doubt that good practice and common sense (not to mention the terms of at least one professional mediator liability insurance policy that I know of) dictate that mediators enter into a written agreement with their clients. Such agreements typically define the mediation process and the mediator's role, spell out exceptions to confidentiality, and describe the respective duties and obligations of the parties to the agreement. A mediator would be foolhardy not to enter into such an agreement

However, such a definition ignores the realities of practice. For example, what about the many solo mediators who conduct their own intake or speak with parties prior to meeting them to prepare them for the mediation or to answer questions about mediation and the mediator's role? Often parties reveal confidential information to mediators in those off-line, one-on-one conversations as a necessary part of intake and screening or the convening process. And sometimes those parties then elect to use a different neutral or even choose not to mediate their dispute at all -- which means that there is no written agreement between those parties and the mediator.

Under the UMA, which does not require a written agreement, such communications in these circumstances would be privileged as they should be. Under current Massachusetts law -- and the version of the UMA which some members of the Working Group support -- they are not. Asking parties to sign an agreement prior to having a preliminary conversation with the mediator -- even to gather information about the mediation process and its suitability for their own dispute-- is both unrealistic and burdensome to all involved. I can see no rational basis for excluding from the protection of the statute these communications.

Training hours requirement.

Don't get me wrong. I believe that all mediators should be adequately trained to serve as neutrals in the mediation of disputes. But a requirement of 30 hours of training in mediation is problematic for many reasons.

First, there is the problem of definition -- what exactly do we mean when we say "training in mediation" when so many competing models of mediation practice abound -- evaluative, facilitative, transformative, narrative, the list goes on? Each is normatively distinct and describes very differently the role and responsibilities of the mediator and the disputants. Some scholars and practitioners, in fact, have argued that evaluative mediation may not be mediation at all.

So if 30 hours of training is required, the question is, 30 hours of training in what kind of mediation? (To learn why this is not just a difference of semantics, read this excerpt from an article by ADR scholar and professor Michael Moffitt.)

The problem, too, lies with the number itself -- whether 30 hours or 40, is that sufficient preparation pedagogically speaking? Plenty of academics would say not, that immersion in a comprehensive curriculum in a formal university setting is necessary to master conflict dynamics and understand negotiation theory.

The training requirement is premised on the notion that training prepares people to be more effective mediators. But in an unlicensed and unregulated field not only are the mediators themselves unregulated but so too are the mediation trainers. Institutions of higher learning must meet recognized accreditation standards. But in the U.S. mediation trainings and trainers are accountable to no one. So while someone may have 30 hours of mediation training under her belt, it doesn't mean that she has had the right kind of training.

Importantly, too, the 30-hour requirement inhibits party choice of mediators -- ironic when self-determination by parties is a core tenet of mediation. Such a requirement also reflects an unfortunate provincialism. It could deprive neutrals who have arrived in Massachusetts from other states or indeed from other countries of the benefits of this statute, discouraging professional and cultural diversity, as well as innovation, in what is still a young and evolving field.


Four years of professional experience.

There are so many problems with this requirement, I'm not sure where to begin. First of all, why four, a wholly arbitrary number? What is the four years based on? Why not three? Or two? Or none? Why should parties be denied the benefit of this statute solely because they selected a neutral possessed of three years, eleven months, and nine days of professional experience? Or even one day of experience, if this is the neutral the parties have selected and trust? And what about individuals who have a real aptitude for mediation? I meet a number of them each year in the trainings I conduct -- people who demonstrate true talent and skill. Why should someone like that be arbitrarily excluded from the statutory meaning of "mediator" simply because they don't have the requisite four years?

Also, what exactly is "four years"? Does that mean 40 hours each week spent mediating for 50 weeks out of every year? Does that mean one case a day? Or one case each week? Or something else?

And what constitutes "professional experience"? According to my dictionary, "professional" means "following an occupation as a means of livelihood or for gain". What does that mean for the many volunteer community mediators who provide pro bono (or low bono) services in small claims or neighborhood settings? Don't they count? Are they amateurs, not professionals? And maybe "four years of professional experience" doesn't mean mediation experience at all. For example, I'm not just a mediator -- I coach and train people in conflict resolution and negotiation skills. Does that work count as "professional experience"? After all, I'm using my skills and knowledge developed as a mediator to deliver those services.

Besides, if the goal is to assure public confidence in mediators, since when is length of years of experience any guarantee that a neutral is any good? A requirement like this does nothing to address or weed out incompetence.

Accountability to a dispute resolution organization which has been in existence for at least three years.

This requirement suffers from the same issues of arbitrariness that the preceding one did. Why three years? I just founded a dispute resolution firm with four partners; together we have over 75 years of experience. One of our members is a pioneering leader in the field and my other partners are no slouches themselves. But because our company is only a few months old, it doesn't count for purposes of this statute.

Again, if public confidence in mediators is the goal, what does the length of existence of a particular organization have to do with it? The length of time in which an organization has been in existence is no guarantee of anything, including its commitment to excellence and best practices.

The problem too is one of language. What did the drafters mean by "accountable to a dispute resolution organization"? What precisely does it mean to be "accountable"? And what about "dispute resolution organization"? Conceivably this could mean an organization that provides arbitration services only but no mediation -- which makes little sense if the objective is to ensure proper supervision of mediators.

This leads me to a final point. This requirement does not recognize alternative methods to build skills and develop the capacity to mediate -- supervision by an experienced and qualified mentor in solo practice, for example, but one who is not part of a "dispute resolution organization".





Let me be clear. I share the goal of building public confidence in the mediation field that motivates those who support this definition. And I agree that establishing threshold requirements for training and credentialing mediators is critical to achieving that goal. But training and credentialing are topics so important that they warrant an independent inquiry, separate from consideration of a statute that concerns evidentiary privilege -- and one that answers, not ignores, the questions I raise here.

I respect those who first wrestled with the question of how to define a mediator when the Massachusetts confidentiality statute was enacted in 1985. And I salute those striving today who wrestle anew with this issue. But we can't shy away from asking hard questions now just because it may be politically expedient to do so or because we fear that raising those questions might show disrespect to the pioneers who came before us.

We owe it to those who will follow us.

Friday, November 16, 2007

Lawyers, Pakistan and democracy: is it time for a Nobel Prize in law?

Is it time for a Nobel Prize in law?I remain haunted by last week's images of lawyers protesting in the streets of Lahore. Their defiant response to Musharraf's declaration of martial law reminds us of how integral the rule of law is to a functioning democracy.

How might we honor law's place in delivering justice and safeguarding human rights? How can we recognize the importance of law and its institutions?

Garrett Epps, writing for The Nation, proposes that "We Need a Nobel Prize in Law".

I, for one, agree.

For a stirring reminder of why the rule of law matters, read the text of the 1958 radio address by then American Bar Association president Charles Rhyne announcing the enactment of Law Day, a "day of national dedication to the principle of government under law". May 1, 2008, incidentally, marks Law Day's 50th anniversary.

Online Guide to Mediation Link Round-up | November 16, 2007

Online Guide to Mediation rounds up links for the week of November 16Some good stuff on the web to round out the week:

Language Log posts a cartoon on communication by omission about all the unspoken messages family members convey to each during the stress of the holidays (particularly mothers and their adult children), as well as a meditation on the use of diplomatic language to settle disputes in "The moral of losing your pants, your suit, and your job".

Thinking Ethics links to a great resource on the BBC web site on the ethics of lying.

At the Harvard Gazette Online is an article on "Buddhism and the art of negotiation: Mindfulness, 'unattachment' — and getting what you want".

The Wall Street Journal Law Blog asks, "Is arbitration the new litigation?" and provokes a lively debate in the comments section.

In "Navy Showers, Low Flow Showerheads and Other Water Conservation Ideas", Chris Annunziata at CKA Mediation and Arbitration Blog describes how one mediator gets his whole family to go green and conserve water.

Finally, if you're in need of some inspiration at the end of a tough week, then treat yourself to this uplifting video of a cellphone salesman achieving a lifelong dream to sing opera. (Thanks to my pal Geoff Sharp for sending the link my way.)

Thursday, November 15, 2007

Latest podcast from Harvard PON covers negotiation lessons from baseball's free agents

Negotiation lessons from baseballRed Sox fans like myself, while still basking in the afterglow of our team's recent World Series triumph, are grieving that baseball season has at last come to an end.

But I can take comfort in the latest edition of PONCAST, which brings together two of my favorite topics, negotiation and baseball, in its latest podcast, "Negotiation Lessons from Baseball's Free Agents".

(Photo credit: Rodolfo Clix.)

Don't neglect emotions in negotiation and mediation

Do not ignore emotions at the negotiation tableI 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.

And there's nothing touchy-feely about that.

Myth or fact: Are attorneys the best divorce mediators?

Are attorneys the best mediators?While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, "Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators".

The press release contains the following quote:
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.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski's "Let's Change Our Limiting Self-Labeling Practices" posted at Mediate.com.

Marathon edition of Blawg Review a winner

Marathon edition of Blawg ReviewRunners and running have inspired poetry and literature, art and film.

This week it serves as the inspiration for the magnificently marathon-themed Blawg Review #134, hosted by Eric Turkewitz at New York Personal Injury Law Blog.

Blawg Review is the weekly review of the best in legal blogging hosted each week by a different blogger. Next week's Blawg Review will be a double presentation, hosted by the Rainbow Law Center and Transgender Workplace Diversity in commemoration of Equal Opportunity Day and Transgender Day of Remembrance.

Sunday, November 11, 2007

Against All Odds: online game builds awareness of refugees' plight

Against All Odds computer gameConflict and persecution produce tragedy unimaginable to those of us who reside far from lands where gunfire sounds or where human rights are threatened.

To raise awareness of the plight of the world's refugees -- the thousands who have fled their homes to seek asylum -- the Office of the United Nations High Commissioner for Refugees (UNHCR) has created Against All Odds, an online game that seeks to build understanding of the grim realities that face the 1 out of every 300 people world-wide who are refugees today.

The Against All Odds web site includes a teacher's guide and a fact sheet.

This is of course not the only use of online games to teach social messages. You can read more at the following posts: "War games: digital technology provides medium for educating and influencing" and "USC students develop virtual game to bring real-world attention to Darfur crisis".

Thanks to Thinking Ethics for the link.

11 November 2007

Veterans Day, November 11 2007

How to turn a simple misunderstanding into all-out war: a mediator's advice

How to get to no with your enemy: a mediator's guide to doing conflict rightIf public opinion is anything to go by, conflict resolution is for sissies. If that's the case, then maybe it's time to give the public what it really wants: advice on how to escalate conflict.

I therefore offer 5 steps guaranteed to transform any molehill into a mountain:

1. Ignore facts. Disregard or suppress all evidence that undermines your position. In fact, facts can be trouble -- they might raise doubt among your supporters, or, even worse, persuade them or even you that your opponent just might have a point. Take precautions by surrounding yourself with servile bootlickers who will tell you only what you want to hear.

2. Make stuff up. If you can't find facts to support your position, just invent some. Rumor and innuendo are your friends. Remember, appeals to emotion, with no basis in reason, work best.

3. Make assumptions -- lots of them. This is important. Assume first that you're right and they're wrong. Assume you need no further information (see Step #1 above). In addition, assume you know what they're thinking. Attribute malicious motives to your opponent especially if there is no evidence to support that assumption. It's fun to make them have to prove a negative.

4. Exaggerate the harm. Draw false analogies -- the more improbable and exaggerated the better. Even if the issue concerns something minor (and admittedly most interpersonal problems are), compare your opponents to Nazis and the impact of their actions on you to the Holocaust. Accuracy isn't important here -- conveying your sense of injustice and wounded pride is the effect you're going for.

5. Get personal. Attack your opponent's character or physical appearance, not his or her arguments. Seek out every opportunity to impugn their credibility, their intelligence, their grasp of facts, their patriotism, or all four for extra bonus points. If possible, insult their parents, spouses, children, or pets, along with their social status, religion, and dietary habits.

These proven methods get results with family, co-workers, neighbors, bloggers, political opponents, or anyone you can't stand. Try them today and you'll be "getting to no" in no time!

Taking care of business: tips and resources for the mediator

Tips for mediators running their own businessFor many mediators in private practice, it's not delivering services that poses a challenge. It's managing the business end of things that can be tricky. Here are some links that offer tips that may help:

For general, all-around ideas and support on running a home office, since many solo practitioners do, visit Home Office Warrior, where you can find among other things a Home Office Warrior Blog Carnival, with a list of resources for anyone who works from home, and a look at the "Cell Phone v. Landline" debate for those struggling with selecting a phone service that keeps them connected best with clients.

For those deciding whether to launch a business from home, Dumb Little Man lays out a plan for those who want to work successfully from home.

Although April 15 seems far away, it's never too early to organize your records for tax time. Web Worker Daily has ideas on "Tracking Business Expenses", with a link to our friend the IRS for more information. (Hint: save those receipts.)

Mediation Mensch points out the marketing lesson for mediators in a recent BusinessWeek article, "Education-Based Marketing Sells".

Mediator Tech has advice on expressing end-of-year appreciation to clients and referrers in a way that will make your thanks stand out from the rest.

Finally, for those of you seeking to keep costs down (or just in need of a good laugh), you may want to consider Word Perhect, a free online word processor. (A hat tip to Slaw.)

(Photo credit: Herman Brinkman.)

Wednesday, November 07, 2007

International Dispute Negotiation: new podcast with a global perspective added to World Directory of ADR Blogs

New international negotiation podcast added to World Directory of ADR BlogsNo sooner had the virtual ink dried on my post about a new ADR health care blog than I received a delightful message about a new dispute resolution podcast -- this one with a distinctly international flavor.

International Dispute Negotiation, presented by the International Institute for Conflict Prevention & Resolution (CPR), explores ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home.

International Dispute Negotiation is hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. Michael is based at his company's headquarters in Florence, Italy, and is a long-time member of the CPR Institute and its European Advisory Committee.

Michael tells me that the podcasts are mainly recorded when he's on the road in different countries, the editing is done in Florence, and the feed is through CPR's website in New York.

This podcast is the latest addition to the World Directory of ADR Blogs, which tracks and catalogues blogs covering dispute resolution and negotiation. If you publish or know of a blog that should be added to the World Directory, please let me know. It's a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and some simple submission guidelines.

Congratulations, Michael, and best wishes on the launch of this superb audioblog.

New health care ADR blog launches

New health care ADR blog launchesEarlier this week Vickie Pynchon at Settle It Now Negotiation Blog heralded the arrival of a new ADR blog with a special focus: health care.

The Healthcare Neutral ADR Blog is the creation of attorney and neutral Richard J. Webb, who brings more than 25 years of experience in the health care field to the mediation table -- and to his blog's subscribers. Richard has this to say about both the business he founded and the unique focus of his brand-new blog:

Healthcare Neutral, LLC provides alternative dispute resolution (or "ADR") services exclusively for the healthcare industry. Richard J. Webb established this firm to address a growing, unmet need in the healthcare field for efficient and effective alternatives to the traditional litigation process. In this blogsite, you will learn about ADR, and how ADR can be used within the healthcare industry. You also will be introduced to useful links and topical discussions to help you better utilize ADR in your healthcare business.
I'd like to welcome Richard to the growing community of dispute resolution bloggers. Congratulations on what promises to be a great addition to the ADR blogosphere.

Mediation link round-up | November 7, 2007

Mediation link round upThis week's round-up of links and articles for mediators includes:

Jonathan Reitman, one of the New England mediation community's most beloved and respected figures, asks, "Is there mediation fatigue?" as he considers what happens to a mediator's ability to be compassionate when mediators are exposed on a regular basis to traumatic stories told by their clients. This is required reading for any mediator whose work routinely exposes him or her to suffering.

At MediationTools.com you'll find "Impasse is a Fallacy", an article by dispute resolution professional Lee Jay Berman with strategies for mediators to avoid stalemates and jump-start stalled negotiations.

Before I refer readers to online resources or tools, they must first meet a few criteria. It's got to be stuff that's readily available on the web (which usually means no registration or subscription required and preferably is either free or really, really cheap). I'm making an exception today for the Engaging Conflicts electronic newsletter (which is free but does require you to sign up with an email address to receive). Produced by Gini Nelson, this outstanding newsletter regularly features interviews with extraordinary individuals in the dispute resolution field. The most recent edition introduced newsletter subscribers to Emmy Irobi, a conflict resolution specialist now living in Poland, who once served as a child soldier in Biafra and has first-hand experience of the human tragedy that conflict and violence give rise to. Although I know that many readers want to reduce the influx of email, this is one newsletter that consistently delivers great content with information relevant to any dispute resolution professional.

In the "you've got to be kidding me" category is a story of an Illinois teenager punished with two detentions by her public elementary school for -- get this -- hugging two classmates. (For full appreciation of just how dumb this disciplinary action is, watch this interview with the girl and her parents.) (Thanks to QuizLaw for the link. A caution to those of you with delicate sensibilities -- QuizLaw in its post uses language that would land it a week's worth of detentions, so careful as you click.)

In case you hadn't heard, Tammy Lenski of Mediator Tech is offering for download free copies of the first chapter of her soon-to-be-released book, Making Mediation Your Day Job. Tammy is known for her wise advice, generously dispensed to readers of her blog.

At the Chronicle of Higher Education, read about one university administrator's growing appreciation for the role of conflict resolution in addressing institutional disputes in "When Private Animosities Distort Professional Judgment".

Finally, I close with a titillatingly captioned mediation-related news story: "Mediation ordered for topless bar owner, landlord". Some mediators get all the fun cases.

Blawg Review #133 is up at Chicago IP Litigation Blog

R. David Donoghue hosts Blawg Review #133 at Chicago IP Litigation Blog. (Blawg Review, for you newcomers, is the weekly review of the best in legal blogging hosted each week by a different law blogger.)

Next week's host is Eric Turkewitz who publishes the New York Personal Injury Law Blog. He's invited legal bloggers to send along their submissions for consideration. And if personal injury law doesn't get your pulse racing, no fear, since it won't be Eric's theme for this edition of Blawg Review. In fact, "racing" may indeed be the operative word, if the hints Eric has dropped are anything to go by.

Thursday, November 01, 2007

Another cool optical illusion

Optical illusionsIf you liked the right brain/left brain optical illusion I shared with readers last month, then you'll enjoy this one from the Brain Waves blog: "A Scary Illusion: Mr. Angry and Ms. Calm" which depicts two faces which switch positions with each other, depending upon how close you are to your computer screen as you're viewing them.

A reminder that things always look different depending on how we're looking at them.

(Thanks to Stephanie West Allen for the tip.)

Time for a change: Is mediation ready for reform?

Changes ahead for the mediation field?While legal futurist Richard Susskind contemplates the future of the legal profession in an online debate over excerpts from his new book, The End of Lawyers?, two leaders in the alternative dispute resolution field take a hard look at the direction of mediation and think it's time for change.

Guerrilla negotiator Robert Benjamin offers both tribute and lament to the field of mediation in an essay honoring Mediate.com co-founder Jim Melamed, recent recipient of the ACR John Haynes Distinguished Mediator Award:

Now, as mediation has become institutionalized, too many of us seem content to merely send out brochures to referral sources or sign up for panels and wait for cases to be sent to our door. Too often we work as agents of the establishment and not as independent, innovative professionals.

The acceptance and legitimizing of mediation by courts and other organizations may be the best thing that has happened to mediation practice -- and perhaps also the worst. Haynes often warned that without very careful monitoring, mediation would become just another cog in the institutional machinery. He knew, as does Melamed, that unless mediators appreciate the necessity of being independent and effective practitioners, not beholden or reliant on anyone but the parties for their professional survival, the field may be in jeopardy.

Meanwhile, ADR expert James Alfini, president and dean of the South Texas College of Law, recently made the case that the mediation system in Texas needs reform, pointing to problems that other U.S. states are no stranger to. The big problem? Too many lawyers serving as mediators, according to an article this week in the Southeast Texas Record:

For "big stakes" cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.

The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.

"This mutes the parties and returns it to a lawyer-centric, not party-centric system," Alfini said.

When lawyer-mediators take on an evaluative role - offering opinions on settlement options - the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.

Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of "shuttle diplomacy" - one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.

"This sacrifices effective justice for efficient deal brokering," he said.

Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.
New Zealand mediator Geoff Sharp asks his American readers for help in making sense of Benjamin's criticisms of the state of the mediation field here in the U.S. In my view the problem lies not in a lack of innovation or entrepreneurship. But I do think that Benjamin is right that mediation's complicitness in the functioning of the institutional machinery yields the kind of failings that Dean Alfini points to.

And I continue to ask, as I have here before, does ADR further justice or does it thwart it? There is too much evidence to suggest that it often, however inadvertently, performs the latter and not for the former.

Maybe it's time for us to shake up the establishment. Mediators, what do you think? Is Robert Benjamin the Richard Susskind of our field? Or is he just lobbing bombs for the pleasure of seeing them explode?

Jim Melamed receives John Haynes Distinguished Mediator Award from ACR

Congratulations to Jim Melamed, influential mediation pioneer and co-founder of Mediate.com, who received the 2007 John Haynes Distinguished Mediator Award from the Association for Conflict Resolution at ACR's recent 2007 Conference in Phoenix, Arizona.

Jim, I can't think of anyone more deserving of such an honor. Thanks for your contributions to our field -- and your support of the ADR blogging community.