Greetings and Happy New Year!!
“I suggest that the rumors of the death of mediation and the significant role of the traditional process mediator are greatly exaggerated” …………
This quote from an article I recently read written by Greg Rooney, an Australian, for Mediate Dot Com has me really thinking of this whole “Professional, Certified Non-Attorney Mediator vs. Lawyer” discussion of Mediation.
According to Mr. Rooney, we now live in a time where a world of connectivity and fluidity has replaced the 20th century Newtonian concepts that are linear, predictable and deterministic. We live in a world driven by the rise of the World Wide Web. We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.
The biggest upheaval, according to Mr. Rooney has been the rise in the commercial value of trust over that of competitive and adversarial behaviors. The “sharing” economy relies on the willingness of users to be trustworthy and to trust each other. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.
We therefore require a new world order of thinking and operating in how we solve conflict. Mediators go off into the world and engage with parties at a very human level much the same as it was done in the 1980’s. They work with the uncertainties of conflict and hopefully come up with a “good enough” resolution. Rooney states, “These soft skills are now in high demand in the commercial world”.
It has left the legal profession with an identity crisis as they try to fit into this new reality. Since the 80’s the legal profession has moved from being a trusted profession based on the application of scale costs, which moderated the professions financial self-interest, to a commercial business model built on time costing to maximize dollar return through promoting (litigation finance) and extending disputes by means of adversarial culture according to Mr. Rooney. The problem, according to Mr. Rooney, is not so much the high legal fees, it is the pursuit of an adversarial approach to drive those extra fees. This keeps the clients stuck in their “conflict zone” far longer than is commercially acceptable or necessary. This has turned out to be a huge self-inflicted wound.
In response to the challenge presented by this new world order of collaboration, the legal profession has sought to rebrand itself to try and recover commercial relevance. The legal profession has sought to rebadge itself by dumping the designation “litigators” and replacing it with “Dispute Resolvers” now with lofty ideals according to Mr. Rooney. Mr. Rooney found it ironic that the long-term criticism of traditional mediation by the legal profession has been that it is to “touch-feely” and into “healing, wholeness, harmony and optimal human functioning” the very thing this the legal profession is trying to champion “Dispute Resolvers” as.
I am not sure the commercial world is buying this makeover, particularly when it is built on an adversarial solution focused culture and training that is not in harmony with modern economic drivers. I read where during the recent Global Pound Conference it was recommended that “It will be necessary to use research to ensure that if evaluative mediation becomes the norm approach, as well it should, that quality-control and ethical frameworks exist to prevent rogue Attorney mediators from making de facto determinations.”
Mr. Rooney suggests that the traditional non-evaluative “process” approach to mediation is far more in tune with the modern collaborative economy. It is an experiential approach which gives the parties time and space to step back and allow patterns to emerge. The mediators use their senses and respond to those patterns. This creates the potential for new opportunities to emerge out of the interaction that can lead to innovation and creativity. It can help repair disrupted trust which is the central foundation of the modern economy and world order. It is mediating for the emergence of the new rather than providing an “evaluation” of the parties’ respective positions in order to find an upper hand and close the gap for litigation finance.
Tomorrow we will all go off and continue the traditional process where we will try to remain present in the moment to observe the dynamics of human interaction between the parties. We will probe first and then sense and respond to the reaction and we will try to suspend attachment to memories, desires and the need to understand what is happening and will try and not be deterred by blockages and impasses. We will allow our intuition to guide us through the session rather than let the mechanical side of our brain be our master.
Mr. Rooney closes his article by suggesting to the legal community in general and the “dispute resolvers” that the answer to restoring the “value” for the legal product in the new economy is not to push aside or try to diminish the traditional mediation movement but to embrace it and welcome it as a path to acquire the necessary “soft skills” to constructively engage with the fluidity, ambiguity and complexity of the new age not necessarily taught or coached in law school.
Yes, it is true ….. The rumors of the death of mediation and the significant role of the traditional process mediator aka Professional, Certified Non-Attorney Mediators are GREATLY exaggerated!!!!
Until the next time …………..Ted Ramirez, NMMA President