The Future of Mediation: Changing the Default of Fault

Will the future of mediation be, as Woody Allen remarked, “much like the present, only longer”?  Given what we know about human nature, systems, and the resistance of each to change, that’s perhaps the safest prediction. But it’s also a less than hopeful prognosis, because mediation has much to offer the future, far more than it has achieved at present.   

Our greatest challenge, is in fact, defined by our own language. “Alternative dispute resolution,” like alternative medicine, alt-rock and alternative sources of energy, defines itself tentatively and marginally, as a niche in contrast to the mainstream or status quo, which in the United States is the litigation/prosecution matrix.

I recently attended a symposium on Restorative Justice at the Harvard Law School, which invited a notable critic of restorative justice to be on the keynote panel.  The speaker argued that a major defect of restorative justice was the possibility of unequal outcomes for different victims and perpetrators. Struck by this claim, I began to consider all the ways the current legal system shares RJ’s alleged defect of inequity: economic and racial inequalities in legislation, law enforcement, and incarceration and sentencing patterns, to gender biases, to state-by-state, court-by-court, judge-by-judge, and other variations in treatment of the same acts.

The paradox is, of course, that when not debating ADR, most observers of our current system would agree that the status quo is unacceptable. How many times have we heard “the system is broken,” and not just in this context?  Google finds the phrase 300 million times in a third of a second.  The educational, political, immigration, transportation, and tax systems are evidently all broken.  But according to Google, none are as broken as our legal system, which registers 126 million total hits (justice, court, legal, and prison), compared to 84 million for all those other systems combined.

The numbers are clear.  On the civil side, multinationals spend four to nine times as much on litigation in the U.S. as in their other business locations, with an average of nearly five million pages of documentation produced for ever major case in America. A few years ago, Fortune calculated that litigation costs American corporations a third of their profits. On the criminal side, our massive incarceration rate, and the fact that the U.S. spends almost as much on its criminal justice system as on elementary school teaching, should speak for themselves.

Maybe we can take a cue from current management thinking, which calls for “disruptive innovation” -- not tinkering with the cell phone, the internal combustion engine, or the hotel, but creating the iPhone, the Tesla, or Airbnb. In fact, mediation may be better positioned to take advantage of disruptive technologies than the courts – ODR’s rapid growth, for one, allows mediation to boldly go where no court has ever gone before.  

The pieces already exist.  Most of us know that mediation is as old and as widespread as any other organized dispute system.  We also have evidence that it’s more effective in terms of time, money, and satisfaction.  We’ve seen many people come over to the side of mediation and other forms of ADR, sometimes abandoning legal careers to do so. For every judge or attorney who makes the shift, there are probably many others hesitating on the edge. We need to work harder to encourage more to make the leap.

Some of the Buddha’s disciples questioned whether they should seek nirvana, since they knew little about what it would be. The Buddha responded that they were like people in a burning house who refused to leave until they could be sure that conditions outside would be better than in the house, and so continued suffering, and eventually perished.  We have the advantage that mediation and ADR, unlike nirvana, exist in the current world, ripe for comparison.

The challenge is large, given inertia, entrenched interests, and perhaps most formidable of all, a culture that favors competition over collaboration in so many areas of life. But is it too optimistic to suggest that, in an age when not only innovative technologies, but marriage equality and universal health care, are becoming “the new normal,” ADR should strive toward the same goal?   Our case is sound, and we only need ways to make it heard. Again, the virtual world is a powerful ally in this work.

To take just one example, two states – Colorado and Vermont – now legally recognize October Conflict Resolution Month, taking ACR’s Conflict Resolution Day a step further into the main stream.  The Massachusetts legislature has filed a similar bill in its current session. Having all fifty states emulate these would be a platform not only for publicity but for buy-in among government itself.
Of course, we need a tag line.  The Olympics slogan is “Swifter, Higher, Stronger.”  Perhaps our (non-alternative) motto for mediation could be “Quicker, Gentler, Fairer.”  (Alternatives welcome.)

By Richard Barbieri,
July, 2015


Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”