The current unhealthy state of commercial mediation

My concerns over the current state of mediation is that we – the lawyers and clients and ADR providers – have decided to abandon conversation and rather accept mediation in which we isolate the parties. In this regard, I have the following two questions:

  1. Has the field of mediation1 reached its full potential, or is it on a plateau?
  2. Have mediators or users of mediation and facilitation accepted a status quo for mediation that is substantially less than its full potential?

I suggest that: (1) the legal community has learned to accept low-functioning mediation; and (2) changes are needed to bring commercial and environmental mediationto their full potential. Many cases and conflicts are effectively resolved in mediation. Mediation and facilitation continue to achieve great successes. However, commercial mediation may be under functioning.

To improve the functioning of mediation, I suggest that mediators and the legal community do the following:

1) broaden the definition and process of mediation;

2) take steps to fully employ party-to-party dialogue rather than accepting the standard of working in separate rooms with party communications relayed by a mediator; and

3) consider whether contemporary mediation processes have borrowed excessively from litigation and thereby brought into mediation the separateness that accompanies litigation.

I believe that mediators: 1) should resist being defined and driven by the market and its expectations in ways that diminish mediation’s full potential; 2) should avoid the temptation to dispense mediation services and, instead, move toward counseling parties about processes that fit their needs (rather than providing off-the-shelf processes); and 3) should not sell mediation as a principally cost-saving undertaking, but instead lead parties to mediation as their best option when the conditions are suitable.

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