2020 Vision

Where in the world will mediation be within 10 years?

Michael Leathes [1]

 

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Yogi Berra made his name not only by winning the 1969 World Series as coach of the New York Mets but with malapropisms like half the lies they tell about me aren’t true and always go to other people’s funerals, otherwise they won’t come to yours.   But his remark that the future ain’t what it used to bewas more profound.  Change happens faster now.  The near certainties of the past look more like unconvincing theories.   Ways of leading, educating, negotiating, daring, innovating and succeeding are being reinvented.  The future arrives more quickly; a 10-year forecast is now more challenging.

Yet accurate predictions remain vital to social and economic progress.  Major companies still predict decades ahead, adapting their assumptions as time goes by, refining the scenarios.  For example, the focus of the World Business Council for Sustainable Development, an association of 200 international companies, is what the world will look like in 2050 and convenes chief executives across all sectors worldwide to collaborate in ways that will enable society to be sustainable in 40 years time.

So, what about the mediation field – or, should I say, movement?  Are its stakeholders doing anything similar?  Setting aside the obvious role that effective dispute avoidance and prevention can play in achieving a sustainable society and economy, the immediate question is whether the main players in mediation are taking steps to drive, grow and sustain the field itself.  Where could mediation be in 10 years time?  Can stakeholders realistically exert a significant positive influence on the field’s future progression?

When you cut into the present, the future leaks out observed the novelist William S. Burroughs.  Once the current state of mediation has been laid out and dissected, the pointers to the future, if we look for them, will reveal themselves so they can be analysed and applied to the advantage of everyone.  Those indicators must be shared, appreciated and leveraged skillfully and collaboratively or we ignore at our peril the clear advice of Mahatma Gandhi: YOU must be the change you wish to see in the world. 

None of us knows the future, but we all try to predict it.  Not being a soothsayer, my humble way for trying to forecast mediation is quite prosaic: to appreciate the history, assess the status quo, then focus on two key issues: how mediation is learned, practiced and presented to its market, plus how user needs are changing.  Then cut into each with a constructively critical eye, see what leaks out, and combine the results to try and map out a likely or achievable future.  This may enable us to assess whether, and if so how, we can all exert a meaningful and positive influence on the development of mediation.

 

[1] Michael Leathes, is a director of the International Mediation Institute (IMI) and a former in-house counsel with a number of international companies.  The views offered here are the author’s alone but he invites comments from all stakeholders in the mediation field to encourage debate on the progression of mediation towards an international profession.  Michael can be reached via “Contact Us” at the IMI portal –  www.IMImediation.org

 


 

The Past - history in a nutshell

In the Lunyu, or Analects, it is recorded that Zi-gong asked: Master, is there a single word which may serve as a rule of practice for all one’s life? to whichConfucius replied: Is not Reciprocity such a word?  Mediation’s roots lie at the heart of Confucianism, which later civilizations, like the Roman Empire, also applied extensively.

 In process terms, modern mediation crystallised when United States Chief Justice Warren Burger invited Professor Frank E. A. Sander of Harvard Law School to present a paper at the Roscoe Pound Conference of 1976 in St Paul, Minnesota.  This historic gathering of legal scholars and jurists discussed ways to address dissatisfaction with the American legal system and to reform the administration and delivery of justice.  Professor Sander’s paper Perspectives on Justice in the Future urged a widespread adoption of non-litigious forms of dispute resolution, not least of which is mediation. 

US State legislatures then focused on mediation, and law and business schools began research.  In 1979, CPR Institute was founded, backed by companies and professional firms, and began to explain the idea of mediation.  Getting To Yes by Harvard Law School Professors Roger Fisher and William Ury was published in 1981.  In 1983, Harvard Law School, MIT and Tufts founded the Program on Negotiation, and the Independent Mediation Service of South Africa was formed in 1984.  Two years later came Pepperdine’s Straus Institute for Dispute Resolution.  The “new” field attracted skilled, inspirational and pioneering educators who began defining the requisite skills and processes.  By the late 1980s, those early techniques had spawned training, educational and service initiatives in the US, and professional interest groups like the Association for Conflict Resolution and the ABA Section of Dispute Resolution were established.  Mediation germinated elsewhere with the formation in 1988 of LEADR in Australia and the ADR Institute of Canada, then ADR Group and CEDR in the UK in 1990.  Others followed in Singapore, Hong Kong, Continental Europe and Latin America.

The early development of mediation was meteoric, but by the new Millennium the growth curve had slowed.  Governments tried to provide stimulus through the Uniform Mediation Act 2001, the UNCITRAL Model Law on International Commercial Conciliation in 2002 and the European Mediation Directive in 2008 by attempting to inject clarity into issues that might otherwise hold back the progress of mediation. 

However, supply of people holding themselves out as mediators was outpacing demand.  As mediation matured, limitations surfaced.  Mediation was too heavily presented as a solution to the failures of common law litigation; the field was largely populated by lawyers who unthinkingly called it Alternative Dispute Resolution and included arbitration under that term; mediation was seen in many civil law countries as an Anglo-Americanism; lay people - the users - largely failed to grasp its potential beyond the context of courtroom processes; some panels offered both arbitrators and mediators, causing some confusion; and mediation’s application as an innovative branch of negotiation, conflict prevention and avoidance all got rather lost.  Nonetheless, by the turn of the Century, mediation had arrived and, skilfully handled, was poised to develop.

 


 

Ten Years after the Millenium, has mediation become a free-standing profession?

In The Professionalization of Everyone? in 1964, Harold Wilensky, Professor Emeritus of Political Science at the University of California, Berkeley, suggested five stages in the professionalization of an occupation: (1) a substantial number of people doing full time an activity that has a market; (2) the establishment of training facilities; (3) the creation of a professional association; (4) the association acting to protect its practitioners; and (5) a code of ethics being in force.  Professor Wilensky continued: Any occupation wishing to exercise authority must find a technical basis for it, assert an exclusive jurisdiction, link both skill and jurisdiction to standards of training and convince the public that its services are uniquely trustworthy and tied to a set of professional norms.

The mediation movement is described as an emerging profession.  It meets some of the basic criteria in some places, and none in others, but in only a few places does it meet all the criteria.   More accurately, mediation is a vicarious profession; its practitioners tend to rely heavily on their status elsewhere when asserting professionalism as mediators.

The Litmus Test of whether an occupation has developed into a true profession depends on whether its market perceives it as a profession.  Ute Joas-Quinn is Associate General Counsel of Shell International’s Upstream International Functions.  She is a prominent advocate of the use of mediation, but wants to see it develop properly.  She recently made the following pithy assessment of the status quo:

For those who act as mediators, few have begun their careers in this role.  Most moved to mediation from other professions, and it remains largely an “occupation” for most mediators today.  There is a current absence of user recognition of an “exclusive jurisdiction” for mediation, i.e., there are no consistent high standards of training, no governing professional bodies, few qualifications, and no universally-accepted professional norms.  As a result, the quality of mediators across the board is highly variable, there are few systematic processes to assess or measure a mediator’s quality and competency, and high standards are neither visible nor credible.  Due to inadequate promotion, there is poor understanding of what mediation is and/or what benefits it can bring to facilitate the early resolution of conflicts.  Poor understanding has resulted in limited acceptance of the concept, largely in the business world, but often by the legal profession as well.  Those who are acquainted with mediation may often discover that finding the right mediator is a problem - word of mouth is unpredictable and subjective.

These remarks were offered as an international assessment of how mediation is today. All generalizations have exceptions.  Some providers and trainers do set very high standards and achieve outstanding results, and Australia, Austria, the Netherlands and South Africa have made more progress than most, but it is the absence of consistent across-the-board quality and transparency that currently deprives mediation of its true professional status.

Mediation needs to develop from an occupation where anyone can claim to be a mediator, into a true profession.  That transition is readily achievable within 10 years, and in the following pages I offer thoughts on the components that can make it happen.

 


 

Learning – Acquiring mediation knowledge

Outcomes Based Education (OBE) has gained momentum around the world in most areas of learning.  It assesses students not just on their technical knowledge of inputs like textbooks, but on whether they are able to achieve whatever outcome is required.  Legal education has lagged behind accountancy and other professions in this regard.  Fuelling this drive towards OBE in US legal education, two reports [2] in 2007 by the Carnegie Foundation for the Advancement of Teaching and by a team under Professor Roy Stuckey, urged law schools in the US to broaden the range of lessons they teach; integrate the teaching of knowledge, skills and values, and not treat them as separate subjects addressed in separate courses; and give greater attention to instruction in professionalism.

The Program on Negotiation was innovative, inspiring and unique when introduced in 1983 and since then other centers of learning, especially business and law schools, have built on the wealth of knowledge, teaching and skills generated in the negotiation field.  Others are now incorporating them into core curricula.  Over the next few years, demand for these skills will increase considerably as businesses and professional firms seek to minimize costly post-qualification training, and as graduates strive to maximize their employability.  By 2020, educational institutions, including business and law schools, will systematically incorporate mediation and negotiation skills into their standard mandatory curricula, driven by OBE.  Adventure Learning [3]– getting these skills played out in real environments – will become common, and mediators will be enlisted to offer experience generation opportunities to students through assistantships.  Many schools will be teaching basic dispute avoidance and resolution skills as part of regular curricula.

Companies have long been focused on outcomes, but no more so than now when austerity and certainty drive share values.  GE, Nestlé, AkzoNobel and many other international companies have led the way in demonstrating how mediation and other principled negotiation courses for staff instill an outcome orientation, leading to earlier results and risk avoidance.  Litigation will increasingly be classified as a project, to be managed systematically and proactively, and brought to closure, like any other.

For those not aspiring to practice as mediators, training institutions will provide more focused courses meeting different needs – such as understanding the application and value of mediation, representing clients in a mediation, dispute avoidance techniques, diplomacy, inter-cultural mediation and negotiation, deal mediation and outcome navigation, collaborative law, post-deal execution and relationship-building. 

The next generation is being primarily wired to achieve outcomes, not perpetuate process, a switch in attitudes and skills that will turbo-charge demand for mediation well within the next 10 years.

 

[2] http://www.carnegiefoundation.org/publications/educating-lawyers-preparation-profession-law and http://law.sc.edu/faculty/stuckey/best_practices/best_practices-cover.pdf

[3] See: Venturing Beyond The Classroom, edited by Chris Honeyman, Jim Coben and Giuseppe De Palo, 2010

 


 

Learning – Acquiring mediation skills

Like leaders, entrepreneurs, artists, teachers and musicians, mediators are born, not made – though, of course, not entirely. While knowledge and technical skills are needed in mediation as in other vocations, mediation is essentially practice and personality-based.  The ability, instinctively, to win the trust of opposing and often hostile parties is a vital characteristic of a successful mediator, and not everyone has or can acquire it. Two advanced skills trainers, Jane Gunn and David Richbell of MATA, have emphasised the need for mediators to be highly biphasic, building trust through the capacity to behave in opposite ways depending on circumstances.  In their words: to be both proud and humble, sensitive and tough, strong and gentle, humorous and serious, trusting and cautious, optimistic and pessimistic….  The ability to achieve that degree of instinctive adaptability can be learned, but mostly rooted in personality and aptitude.

Despite this, many practitioners stumbled into mediation, some naturally suited to it, others not.  Few are long-term career mediators.  A high proportion are attorneys – ex-litigators, retired judges and arbitrators, or former politicians and diplomats.  This is probably attributable to the history of modern mediation, that misnomer ADR, and its service-driven, not user-driven, origins.  Despite what some lawyers say, the truth is that legal knowledge and advocacy have little bearing on the ability to mediate - few disputes are ever about what they’re about.  At their roots the majority of disputes are rarely about the legal technicalities they inevitably become consumed by.  Dr Friedrich Glasl elegantly expresses it another way: Do we have a conflict? Or does the conflict have us?[4]

Many of today’s practicing mediators have never been comprehensively trained, but rather learned on the job.  A great number have only attended a one-week training.  Some, but not all, had their skills independently assessed at the end, and only a few  followed up with advanced skills courses or became teachers.  Trainees include those who aspire to practise as mediators, and others who have no intention of practising but seek to sharpen their principled negotiation techniques, or wish to know how and why mediation works, or to represent clients more effectively in mediation.  Very eclectic.

Within 10 years, users will expect recent mediators to have undertaken a comprehensive training program and have successfully passed an assessment – with assessors who are independent of the training faculty.  The assessors will be experienced in skills evaluation and will apply transparent criteria.  Testing will be conducted through roleplays, oral and written examinations and will cover aptitudes, skills, competencies and substantive knowledge of negotiation theories, ethics, hybrids, laws and evolving issues in the field. All practicing mediators successfully passing these courses will be “qualified” one way or another, and expected to attend regular advanced courses and best practice skills sessions as a structured, output-orientated continuing professional development program.

If trainers fail to collaborate in setting consistent, transparent and convincing criteria for their programs meeting high standards, I expect governments to do it for them.

 

[4] Confronting Conflict – A first-aid kit for handling conflict by Friedrich Glasl & Petra Kopp, 1999


 

Delivery – Changing mediation practice

As users become more familiar with mediation, they will become more adventurous.  The demand-side will drive the use of hybrids and the growth curve of complementary evaluative mediation (conciliation) may increase, partly influenced by lawyer-mediators.  Collaborative law and transformative mediation will be widely accepted; mediators will increasingly be used in conflict avoidance, such as establishing regulatory frameworks.

Mediators will accept responsibility to help those starting in the field to gain experience through assistantships, and see that they have much to learn from the younger generation.

New technologies will have an impact both on the growth of mediation and on how it is practiced [5].  Over 20 million people now have Skype switched on their desktops at any moment.  Its video telephony capability and those of similar systems have revolutionized communications with the same cost-free multiple-location video conferencing used by consumers as well as companies and governments.  Skype seems to have been with us for decades, but only came into existence in August 2003, taking several years to catch fire as its stability and quality improved.  Now, such systems are “old” technology. 

Enter telepresence, a technological advance enabling participants to have an enhanced sense of being in the same room together.  Telepresence is now embracing 3D, already available on consumer TV sets, replicating more closely the dynamics of a normal, physical meeting even though participants may be in different time zones.  Soon, holographic meetings will enable people to be virtually “beamed” into our meeting rooms, and we into theirs, appearing to take a seat at each other’s tables, creating a real sense of presence displaying verbal, paraverbal and body language aided by instantaneous language translation and other advances.  The tools required will be built into computer and smartphone screens.  By 2020, these communication platforms will have been in widespread usage for some years, and their stability will have been perfected.  Mediators will use them extensively.

Apps will overtake websites as prime information sources. Smartphones, ePads and laptops will be able to download hundreds of mediation apps, enabling users to access information about mediators, providers and relevant topics worldwide with a finger tap.

Online Dispute Resolution (ODR) will acquire a new significance, enabling mediations to be less dependent on logistics and participant ability to travel.  Mediators will be able to use secure technological environments to ensure confidentiality, providing virtual caucus rooms that guarantee privacy.  New technology will enable users to have the same confidence in the security of these systems as online banking – they are, in fact, safer than today’s physical meeting rooms, which are vulnerable to eavesdropping devices.

Governments are already introducing performance assessments for the public sector. Soon, independent assessment will become the norm for all professionals, everywhere.

 

[5] See: The End of Lawyers? – Re-thinking the nature of legal services by Richard Susskind, OUP 2009

 


 

Promotion – How mediation is presented to its market

Promotion is costly, but is also necessary.  Mediation remains greatly undervalued.  Few providers have resources for promoting the field, focusing more on promoting their own service offerings and branding.  There are few national or international mediation bodies dedicated to expanding the field itself as opposed to growing their own services.  Consequently, mediation is not widely accepted as a credible option. This downward spiral needs reversing or mediation will remain locked into a slow-burn trajectory.

There is now widespread recognition that mediation needs to be perceived as an independent profession, and one that meets high standards.  What is not yet widely shared is the view that transparency is the key to these goals.  Aristotle’s Five Senses apply here as everywhere – users will only understand and accept what they can see, hear, touch, smell and taste.  Mediation happens in private, but professional skills and competencies need not be equally invisible, unheard, intangible, unscented or unpalatable.

Lord Woolf has said [6]: Mediation has come a long way, but still has much further to go. The field now needs to evolve quickly into a true profession. High minimum practice and ethical standards need to be set, made transparent and achieved internationally; users – customers – of mediation need to see these standards operating effectively. More and better information must be made available by individual mediators about their skills, capabilities and personalities. Quality and Transparency will enable mediation to grow.

In August 2010, Professor Sander noted [7] that as mediation has become more pervasive, it is unclear how lay parties can evaluate the quality of mediators and that it is inadequate to just let the market decide.  He concluded that we should be heading towards some kind of ... system for appraising the quality and competency of mediators, at least in terms of requiring training A few weeks later, the Association for Conflict Resolution (ACR) published draft Model Standards for Mediation Certification Programs [8] and invited comment from its 4,000 mediator members in (mainly) the US.

I expect mediation service providers around the world to collaborate and buy into simple, non-bureaucratic and voluntary high-level international competency, practice and ethical standards.  I believe mediators will see the huge value in seeking feedback about their skills from users and peers and have it condensed into an objective summary by an independent person or institution for inclusion as a credible part of their profile.  I expect users to rely less on gossip and hearsay when selecting mediators and to focus much more on user feedback summaries.  This will apply far beyond mediation to include almost all professional services.  

 

[6] Lord Woolf of Barnes was Lord Chief Justice of England & Wales from 2000-20005. The Woolf Report 1996 was the catalyst for the development of mediation in England & Wales. He is a Judge (non-permanent) of the Court of Final Appeal of Hong Kong, President of the Civil and Commercial Court of the Qatar Financial Centre, and recipient of the International Academy of Mediators’ Lifetime Achievement Award 2009.

[7] http://www.mediate.com/articles/sanderdvd06.cfm

[8] http://www.acrnet.org/News.aspx?id=842

 


 

The Demand-Side – User needs are changing

While real estate brokers recite the dogma Location, Location, Location, the mantra of companies, government agencies and others that need to account to their stakeholders is Outcomes, Outcomes, Outcomes.  I have already mentioned the shift from Inputs towards more Outcome Based Education by an increasing number of schools, universities and professional institutions, but ultimately it is the demand side that drives such changes.

The legal profession, gatekeeper of most disputes, is changing as a result.  What Professor Julie Macfarlane at the University of Windsor, Ontario so aptly describes as The New Lawyer [9] is arriving onto the scene – pragmatic, impatient, creative, daring, solution and results-orientated, process-intolerant, favouring (and skilled in) negotiation, mediation, collaborative practice and restorative justice.  Resumés are being re-written.

These New Lawyers are in the market for jobs in the world’s companies and governments.  They are the ones that will increasingly be running day-to-day dispute portfolios, instructing counsel their way and in so doing changing the practice of law.  A different type of client is now emerging, with new priorities, needs and expectations [10].

Government austerity programs are trimming the cost of civil justice to the public purse, causing sharply increased judicial interest in the resolution of disputes before trial.  Almost mandatory mediation is just around the corner.

All this will fuel a rise in collaborative law, where counsel are instructed to resolve a case outside the courtroom but are expressly excluded from representing the client in court should negotiations fail.  Mediation will be well-understood by the New Lawyers, who will typically have been well-trained in those areas at Law School, independently or in-house.  They will be more selective about the skills and attitudes they value in outside counsel.  They will expect less legal analysis and more energetic outcome orientation.  They will have tools at their fingertips to determine what resolution process to pursue, such as administered or non-administered mediation, and will be adept at selecting the right mediator – having been trained in that skill.  This new breed is too impatient to waste time asking for information; if what they need to know about a given mediator does not jump out of their screens in a convincing and credible way, they will simply look to another mediator who provides that information openly.  Institutions that restrict information access to certain visitors, such as members who must login and provide password details, or those that use outdated web tools, and mediators who do not offer credible and easily digestible and feedback, will be marginalized by many users.

There will also be a rise in innovations – engagement of mediators in dealmaking, hybrids, inter-cultural intermediaries, counsel whose client is the deal, not a party to it.  The opportunities for mediation are immense. 

 

[9] The New Lawyer – How Settlement is Transforming the Practice of Law by Julie Macfarlane, UBC Press 2010

[10] See: International Arbitration and Mediation – A Practical Guide by Michael McIlwrath and John Savage, 2010

 


 

The way to predict the future is to invent it

For the future to leak out, it requires a cut into some of today’s realities: an appreciation of the main drivers [11], an assumption that stakeholders on the service side (mediators, providers and trainers) will act in a way that serves their short and medium term interests in light of a changing market, and that those on the demand side (users, adjudicators, educators and governments) will express their needs clearly.  We can also assume that there will continue to be a steady rise in the incidence of disputes, an ongoing user desire to rank outcomes above process, and an ever more educated and informed user base.

Another reality is that mediation is a highly fragmented field.  Service providers are in strong competition.  This inhibits proper dialogue about the future and the ability of the main players to agree concrete goals for the field.  Mediation, like any other endeavour, has its sceptics - those prematurely disappointed in the future and unable or unwilling to change - as well as visionaries and leaders who have already beaten a path through uncharted territory, appreciated that the future belongs to those who prepare now, and are willing to pursue bigger targets in the absence of an overall professional mission. 

This balkanized field is pulled in different directions, unsure whether it is a branch of law or psychology, an art or science, ADR or negotiation, and whether it needs a philosophy, a theory, values, characteristics, practices or all or some of these things.  To continue the debate but stop the dithering, mediation needs strong, well-funded, non-hierarchical non-service-providing professional bodies, founded on the principles of Servant Leadership [12] as explained by the organizational guru Robert K. Greenleaf - in this case establishing and transparently implementing high training and practice standards, objectively explaining and promoting mediation to users, convening all stakeholders, making information freely available, encouraging thought leadership and best practices, developing and disseminating tools, and convincingly inspiring mediation’s growth.

Conspicuously, such bodies will be run not by practicing mediators, providers or trainers, but by full-time managers, drawing on support and contributions from both the demand and supply sides.  Governments have an interest as a user and a vital role in providing credible seed funding so that the new profession is not perceived as purely self-serving.

Once established, these professional institutions will be empowered to establish high standards, disallow mediocrity and ensure transparency.  They will apply, as Professor Sander has already predicted, strict standards for trainers.  Independent assessment will become a key part of those standards.  While many mediators will be lawyers by background, increasingly other professionals will enter and enrich the field.

By 2020, such bodies will have been established in most countries on a national level, and will link to an international body that will help the profession to globalise.

While mediation’s stakeholders address quality, transparency and professional status, numerous other changes will occur.

As the impact of communications technology grows, small claims will typically be commoditised using ODR [13].  Mediators and providers handling larger disputes and those involving emotional issues will find telepresence, online caucus rooms and other IT tools to make mediations more effective, attractive and affordable, reducing travel time and speeding up negotiations.

As users become better informed about how and why mediation works, demand for less conventional, more tailored processes will increase; hybrids of facilitative and evaluative elements, including early case assessment and non-binding opinions, will grow.  Many trainers still teach a purely facilitative model of mediation, but mediators also need to learn how, when and whether to deploy evaluative and transformative techniques as needed.  Gradually, training will adapt to include these needs.

More mediation panels will be process and/or subject-matter oriented, requiring mediators to demonstrate, in addition to their mediation competencies, knowledge of technical fields, conflict diagnostics, process design and inter-cultural communications.  Mediation will no longer be viewed as an alternative form of dispute resolution and will elevate to become the primary form.  In the commercial arena, good conflict management will be considered part of Good Corporate Governance and companies will design their own systems for evaluating, managing and resolving disputes [14].  A more informed and circumspect user will emerge.

Service-side stakeholders will:

  • collaborate more on issues like training, independent assessment and feedback
  • agree on, and apply, minimum high-level quality standards
  • encourage transparency into mediator competency and prior user experience
  • share technology platforms for ensuring security and confidentiality
  • devise schemes to enable new mediators to gain experience and develop professionally
  • insist on rigorous ethical codes and independent reviews with sanctions, and
  • pool resources to promote mediation as a credible profession.

Codes of Ethics will be re-drafted to share common principles throughout the field.  They will also be less legalistic and general.  Ethics codes that are not subject to independent review will be seen as meaningless; compliance panels will be associated with professional institutions, not provider, peer or voluntary practice groups.  Users will expect every practicing mediator to carry professional indemnity insurance and to specify both the underwriter and extent of cover on their profile.

Users will also want hard evidence of a mediator’s skills to enable them to make informed decisions.  Cherry-picked quotations from (usually) unidentified users will lack credibility.  Users will expect an independently-prepared summary of prior user feedback not only for reassurance about competency but to indicate suitability in terms of style and personality.  Mediators posting video clips of themselves explaining their resumés direct to camera or in interview mode will secure more mediation assignments, as users become increasingly meticulous and personal in their choice of mediator.

As OBE becomes more prevalent, those moving into careers in professional firms, companies and governments will exhibit a different attitude to their predecessors, seeking specialist training in solution-providing programs. Mediation trainers will address this market by segmenting their courses; one-size-fits-all training programs will fade away.  Those aspiring to become professional mediators will need more in-depth training resulting in qualification and certification, plus professional development follow-up. Professional firms as well as government and corporate users will demand courses on representing clients in mediations; adjudicators and others will seek courses on the art of referring parties to mediation; practicing mediators will want courses on inter-cultural mediation and other in-depth practice areas.  Major users will increasingly invite trainers to provide tailor-made courses in-house.  Trainers will collaborate to set transparent high level delivery and assessment standards based on independent assessment, or suffer the consequence of governments introducing those standards through regulation.

Justice Departments and Ministries will seek out opportunities to reduce the cost to taxpayers of civil justice programs. Mediation will become increasingly “encouraged” by governments and judiciaries, often to the point of making mediation a sine qua non before, during and even after litigation.  Initiatives such as the CEDR Commission on International Arbitration [15], will prompt users to exert pressure on arbitration institutions to build mediation into their processes.  International dispute resolution forums such as the World Trade Organization (WTO) and the United Nations Conference on Trade & Development (UNCTAD) will also adopt mediation as a prime process.

These developments will revolutionise the practice of mediation and inspire users to better understand mediation and accept it more readily.  Mediation will therefore grow and everyone - supply and demand - will benefit.  Litigation will trade places with mediation to be the new definition of AlternativeDispute Resolution.  None of these actions is difficult, costly or time-consuming.  But they all require a shared vision of the future and the will to achieve it. 

If we reach for it today, mediation quality standards will be universally high by 2020.  Stakeholders such as governments and companies will fund research to surface new tools and statistics proving the value of mediation.  User confidence will flow into mediation.



[11] As discussed above: Outcomes Based Education; Training and Learning; Technology; Quality Standards; Transparency; Collaboration and a Free-Standing Profession.

[14] Designing Conflict Management Systems – Creating productive & healthy organizations by Cathy Costantino, 1995 and Handbook of Human Conflict Technology – creating win-win success without conflicts by Tina Monberg, 2008 and Building ADR into the Corporate Law Department: ADR Systems Design by CPR Institute www.cpradr.org.  Also see the AAA Dispute-Wise Business Management Study: http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004327

 


 

The main thing is to keep the main thing the main thing

Stephen Covey has sold 15 million copies of The 7 Habits of Highly Effective People [16] plus other books.  Habit no. 3 is not to lose sight of the big picture.  In Covey’s words: Broken focus is the number one reason people fail. It’s not enough to start off on the right track; you must successfully avoid the unnecessary distractions and attractions of life that aim to sidetrack you… The main thing is to keep the main thing the main thing.

The main thing here is to achieve professional status. That can only arise by design, not by accident.  The service side - mediators, providers and trainers – needs to collaborate in that design.  They must focus on expanding the total pie and not merely their own slice.  Pie expansion benefits everyone, but demands strong collaboration and dialogue.

If seven things happen, pie expansion will happen:

  1. Mediators, providers and trainers, with the help of government, create a professional body.  The leader is not an active mediator, trainer or provider.  The supervising Board or Council includes representatives of all the stakeholder groups. Everyone participates pro bono in professional development and best practice sharing. 
  2. A realistic five-year funding plan is put in place.  Government provides seed funding.  Overheads are kept low and bureaucracy avoided.  The Internet is leveraged.
  3. The professional body does not earn any income from the provision of services.  It is entirely non-profit and registered as a charitable institution if possible.
  4. Rather than re-invention of the wheel, there should be cultural adaptation.  Lessons are drawn from and shared with professional bodies in other fields.  All national professional bodies are linked up globally.  Transparency and quality characterise this and all other national professional bodies for mediators.  There is a strong mission to encourage and develop young mediators. 
  5. High-level training and independent assessment standards are set and applied.  High competency is accredited/certified.  User feedback summaries are required 
  6. The professional body is open to all who meet the quality criteria set, irrespective of background and other professional qualifications.  The Wilensky test is applied.
  7. There is a strong code of ethics and an independent review body to apply it.

Well before 2020, mediation can be established as the first truly global profession.  Let us all work together to keep the main thing the main thing.

 

November, 2010



[16] Stephen R. Covey’s The 7 Habits of Highly Effective People (1989), The 8th Habit – from effectiveness to greatness (2006) and The Speed of Trust – the one thing that changes everything (2006) are all published by Simon & Schuster.

 




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