The Mediator Legacy

The Junto (a club meeting for mutual improvement established in 1727 by Benjamin Franklin in Philadelphia) we facilitated at the International Academy of Mediator conference in Scottsdale went to the heart of what many of our long-term members are thinking about in the final chapter of our careers: What Will We Leave Behind? The question itself forced us to talk about uncomfortable trends in our practices as well as encouraging examples many of us are experiencing. This note is intended to provide a short synopsis of the workshop and open the door to what will be an ongoing conversation among us.

We reviewed the history of the profession beginning with the Roscoe Pound Conference and the ideals that were developed in the original days mediation was developed in the civil justice system. Some of us had the chance to read the recent provocative law review article by Professor Thomas Main entitled Mediation: An Unlikely Villain. Professor Main contends that mediation has contributed to the courts abandoning their commitment to jury trials and focusing more on case management. He goes on to conclude that the courts have outsourced dispute resolution to ADR providers resulting in the institutionalization of ADR. Many of us took issue with Professor Main’s conclusions.

We discussed whether “institutionalism” is good or bad for mediation, with strong comments all the way around the room. The general idea behind institutionalism is to create a common language for shared experiences and a permanent structure for ideas. It allows us to interpret those ideas and draw lessons from the experiences. Initially the idealists who started the field of mediation were anti-institutionalism because we didn’t like people telling us what to do. Yet, once we formed a community we had to establish norms and rules and ways of doing things. The language we developed allowed us to describe our system to others and create our own culture. We were also able to capture our experiences so that others can re-experience our experiences. In short, the institution allowed us to create a collective life yet we have spent a lot of time discussing if we are doing it right as opposed to simply being good mediators. We also discussed the ancient story of Sukkot and the idea of the institution being the temple where the ten commandments were kept as opposed to the original idea to put them in an open tent that would be universally available and movable. The idea behind the story is that every year a small tent is built to remind people to get out of the box (the institution) and regenerate with new ideas for the future.

So, the big issue comes down to how to break down the institution and reinvent our practice generation after generation in order to remember why they were started and don’t become fossilized and petrified and don’t become obstacles. How do you build an institution, protect it, destroy it and rebuild it for future generations? For musicians who perform such classic pieces such as Beethoven’s 9th symphony, how do you make it fresh and new each time you play it? How to create the unique experience while at the same time being true to the score that was written? These are questions for our legacy as commercial mediators as we pass on our experiences to the next generation.

There were a number of ideas we discussed that began to go below the surface on our legacy.

First, we were reminded by Professor Peter Robinson that the field of mediation is much larger than commercial mediation. There are many different people in large swaths of society doing this work using a plethora of skills, techniques and approaches depending on the nature of the problems. The techniques range from transformative to evaluative depending on the situation. Commercial mediation addresses the needs of our primary audience and does good work for that constituency. The fact that we debate the use of various techniques doesn’t mean what we do for our clients is not appropriate for our mediation practice. In fact our audience wants exactly what we do and we should keep doing it. Very enlightening comments and observations, putting perspective on the legacy issues.

Next, many of us are using skillsets we learned in the early days that reflect the “promise of mediation.” Those skills might be utilized more in caucus then in joint sessions but they are being used regularly and effectively. There is no reason to criticize ourselves for not following old formulas when we are capable of deploying strategies from across the mediation universe successfully.

More specifically for the future, some of the comments discussed:

• Openness — continuing to be open to communicating better with the parties and hearing their underlying concerns;
• Pro bono — the vision of our members in offering expertise on a pro bono basis to clients in need is continuing to take root. We have all done well financially and this is one way to give back and pass forward our skills and experience;
• Reclaim the practice by continuing to advocate for the process of mediation as a preferred method of dispute resolution;
• Expand upon the Mentor/Mentee relationships we have created. Several of us continue to advance those relationships and find immense pleasure in helping the new generation of mediators succeed;
• Continue to work with students in and out of universities understand our field;
• Value creativity at any level which means at the most basic level that listening for the unstated and talk counts;
• Recreate our processes periodically so that we have a sense of renewal;
• Give parties a choice in the model we chose to provide and to be flexible;
• Continue to focus on allowing the parties to control the outcome of their own dispute;
• Don’t ignore empowerment or self-determination, the foundation of our business;
• Encourage law schools to teach mediation advocacy and communication skills to young lawyers;
• Its ok to shatter old norms and create new ones.

This is just the beginning of an ongoing discussion about legacy. If you missed the Junto, we invite you to join us next time when we discuss these matters, or comment on the listserv. We will keep a running diary of ideas and comments. Perhaps we can invite professors like Thomas Main to hear our perspective and supplement his piece to include the point of view of the ADR Professional. Anything is possible.

With respect,

Jeff Krivis