Can Mediation Evolve into a Global Profession?

This year, 2009, celebrates the 200th anniversary of the birth of Charles Darwin, whose theory about how change occurs over time in organisms has had an impact far beyond the biological sciences. Variations on Darwin’s theory of evolution through the process of natural selection are used to explain how changes occur in the formation of culture and societies, companies, technology, and so on.

The same thinking has been applied to methods of dispute resolution, which over time adapt to changes in their surrounding environments. In fact, I recently had the privilege of interviewing cultural anthropologist Robert Carniero, curator of South American ethnology at the American Museum of Natural History in New York, who explained his experiences living for periods with different tribes in the Amazon basin, and their approaches to dispute resolution.1 As Dr. Carniero explains it, primitive and rather brutal forms of dispute resolution – such as beating each other with heavy wooden clubs – works just fine when the groups consist of no more than 50 or 100 people and those not content with the outcome can just move away.

Things get more complicated, however, as societies grow in size and complexity, and so far all large societies have evolved within them formal justice systems. In fact, it appears that societies cannot grow larger in size and complexity without first having evolved a system of resolving disputes that can keep the peace between the citizenry and ensure that markets efficiently function.

Which leads naturally to consider the future of private dispute resolution in a global, interconnected marketplace, and in particular the potential for mediation as an enabler for more efficient global commercial activities. Today, mediation is an organism that thrives in particular niche ecosystems like the UK, Australia, and North America. The question is whether it can thrive in other locations, and whether it can be used to resolve cross-border disputes. Anyone who has experienced mediation will understand its potential to grow and flourish as a critical part of a globally inter-connected economy, but it would be folly to ignore the challenges in breaking out of a local niche practice.

Origin of the Mediation Species

Although mediation traces its origin to the great cultures of Confucian Asia, the Mid-East and Africa, the modern notion was born when US Chief Justice Warren Burger invited Harvard Professor Frank Sander to present a paper at the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists brought together to address dissatisfaction with the American legal system. Prof. Sander’s paper Perspectives on Justice in the Futureprovoked a radical change in thinking. As Justice Sandra Day O’Connor explained: The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

Thus, modern mediation is at most 33 years old. Even in places, like my home state of California where mediation is commonly used, it really would not be fair to say that in this short span of time it has matured to the same level of, say, the medical or legal professions, which have hundreds of years behind them. In many places around the world, in fact, mediation is struggling to gain any traction at all. It has gained a strong foothold in a few countries, such as Canada, the UK and the Netherlands, but in most places it is virtually unknown. It is rarely promoted and often misunderstood, causing lack of respect and acceptance.

In many legal environments, mediation has found itself in a bit of a rut, experiencing only very marginal growth. Where mediators are plentiful, they tend to be in chronic over-supply. In the view of many consumers of dispute services, this is not a problem of mediation but of the way it is presented within these particular markets.

Take the UK for example. Having developed initial techniques and training from the US, there are now thousands of trained mediators. However, it is claimed that only about 20 people practice as full time mediators, with perhaps 50 conducting 80% of the country’s mediations. Thousands of others