Introduction
A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented. Others viewed the responsibility of keeping the process dynamic and interesting on the mediator, the traditional guardian of the process. Whatever the reason, there was a consensus that there is a trend to marginalize the process and the neutral. This quote from an unnamed source summarizes what some say has become of our field:
“Professionalism historically proceeds through a number of stages, starting with the discovery of useful techniques, creative development, and systemization of skills. Next comes professional self-consciousness, the search for legitimacy, and the beginning of territoriality and proprietary behaviors. This is followed by a codification of rules and ethics, escalation of fees, formalization by attorneys, legislators, and judges, and formal certification. Finally comes dismissal of the impecunious, grandfathering of the unqualified, marginalization of the unorthodox, and promotion of the mediocre.”
This sentiment has created a tension between the journey of so many well intentioned people who adopted the humanitarian aspects of the mediation movement as a type of savior for the legal system, and the economic realities of an entrenched civil justice system that is less favorable to change.
In order to envision the future of the profession, it is helpful to start with a snapshot of the past and understand the internal stressors that dominate the field. This article will include an examination of the debate many of the current mediators have within themselves and how those controversies will or will not change the trajectory of mediation in the future. Finally, a review of how to maintain the dynamic nature of a field that has been swallowed into the large menu of options available to the litigator.
Read Part II: History of Mediation
Read Part IV: Adoption by the Courts
Read Part V: The Drift of Mediation
Read Part VI: Adapting to the Adversarial System
Read Part VII: What Approach Actually Works?
Read Part VIII: Make Some Music With Lawyers
Read Part IX: Arguments With Myself About The Future
Read Part X: A Practical View of the Future
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