Thirty Five Years of Mediation: Why Haven't We Come Farther?

With Co-author/Guest blogger Professor Susan F. Dubow

The history:

Using mediation to resolve disputes can be traced, across a variety of cultures, to biblical and ancient times. In this country, the founding fathers recognized the process but mediation did not have a valid place in American policy until 1946 when the Federal Mediation and Conciliation Service (FMCS) was formed to resolve labor disputes. During the 1960s the seeds for paradigm shifts and social change were planted and cultivated. The civil rights, feminist, environmental, and peace movements were born. There was dissatisfaction with governmental and other institutions and the courts were backlogged. A push for a better way to resolve disputes ensued.

In 1976 Chief Justice Warren Burger held a conference and ceremony to commemorate the 70th anniversary of legal scholar Roscoe Pound’s presentation The Causes of Popular Dissatisfaction with the Administration of Justice to the American Bar Association. Pound’s paper of 1906 changed the direction of the American courts. At the Pound Conference of 1976 legal scholars met to brainstorm possible improvements to the American legal system. The potential of the mediation process was acknowledged and Chief Justice Berger “blessed” the start of the ADR movement. That was 35 years ago. Today, the average person and the average legislator still don't really understand or appreciate the concept or how mediation can be best utilized.

Together, Susan and I have spent more than a half century in the mediation industry and during the last eleven years we’ve trained more than 10,000 professionals in the mediation process. We believe tremendous brain power and effort has been devoted to the process and profession. But, ultimately when we compare mediation to other things that have been around since the mid-1970s we are disappointed. We ask ourselves “what went wrong?” “Why haven't we come further?” “Why hasn’t mediation made it into the “cultural mind?” We spend a lot of time asking ourselves and other mediators these questions.

As we see it, there are nine things wrong with the mediation picture.

1. When the human animal (like other animals) feels threatened the initial response is fight, flight or freeze. People in conflict want blood, vengeance, and validation. Asking someone in conflict to collaborate is contrary to biology. Mediators have not found a way around the physiology.

2. Most mediators are not able to create and maintain an environment safe enough for true collaboration. Mediation horror stories abound. People often emerge from the process feeling railroaded and coerced.

3. Even after thirty five years there is still reluctance on the part of the legal industry to accept the mediation process as a stand-alone method of dispute resolution. Instead mediation is often viewed as a component of the litigation process. (Is mediation still perceived as McJustice or is there a fear that mediation will cut into the finances and power the status quo affords?)

4. Advocacy is much sexier than peacemaking. Remember, super-heros don’t sit down and work-it-out with the bad guys.

5. There is no American Mediation Association. Without a national organization no one is there to give us a unified voice, protect our legislative interests, or promote good mediation PR.

6. Mediators work in a wide range of niche markets, facing different issues and interests. (For instance, mediators in the financial services arena operate in a different world and with a different world view than those who provide Victim-Offender Mediation.)

7. Baseball, Middle-East, and other highly visible mediation processes often bring no resolution.

8. The results of the mediation process are typically narrow. Until we can broaden the effect and actually provide transformation the participants and the public have nothing to talk about. And, without that buzz we are going nowhere.

9. While many mediators are persuasive magicians, capable of amazingly altering perceptions, ultimately we mediators suffer from a unique form of low self-esteem. Many of us refuse to even embrace the title “Mediator.” Instead we identify ourselves and each other as Attorney-Mediator, Therapist-Mediator, Non-Lawyer Mediator, etc. Do we see ourselves as bit players along the Conflict Management Continuum? Is it conflict phobia that fuels the burning desire to eradicate conflict? Or is there another reason that so many of us are willing to work as volunteers, more invested in the outcome than the clients we serve?

Just consider this:

A Westernized form of Hindu meditative techniques arrived in the United States and Europe in the 1960s. A 2007 study by the U.S. government found that nearly 9.4% of U.S. adults (over 20 million) had practiced meditation within the past 12 months, up from 7.6% (more than 15 million people) in 2002. Why has meditation done so much better at going mainstream than mediation?

Steve Jobs founded Apple Computers in 1976. If he had been at the Pound Conference instead of in his garage working on his computer where do you think the mediation process would be today? Who among us has the Jobs-like vision that will be necessary to take us to the next level?

Clearly, current shifts in almost every aspect of our society – economic, familial, political, and environmental – point to the need for a new problem-solving mechanism and mediation just might be an idea whose time has come. So stay tuned. Our next article will focus on what each of us can do so that we are not having the same discussion ten, twenty, or thirty years from now?

Susan F. Dubow, a pioneer in the field of Alternative Dispute Resolution, served as the Director of the Court Mediation and Arbitration Program, the ADR Division of the 17th Judicial Circuit, Broward County, for over 22 years. She is a Florida Supreme Court Certified Mediator and Primary Mediation Trainer and a member of the Florida Supreme Court's Mediator Ethics Advisory Committee. Susan is an Adjunct Professor at Nova Southeastern University's Shepard Broad Law Center, President and CEO of Mediation Training Group, and a Past-president of both The Association of South Florida Mediators and Arbitrators (ASFMA) and The Florida Academy of Professional Mediators (FAPM.)