Mediation: Cause or Industry?

Our passion for mediation sometimes makes us speak of it as a cause, something noble and good. Yet paradoxically, if mediation is and remains merely a cause, its reach and impact will be limited.

In response, I believe that we must envision mediation primarily as an industry. Indeed, the future of mediation depends on our creating an economically strong mediation industry, replete with a full value chain of providers — mediators, infrastructure providers (e.g. newresolutionmediation.com/platform, mediate.com, etc.), training and credentialing agencies, business consulting services (e.g. MediationCareer.org), and of course clients

By analogy, fighting disease is a cause. And good causes garner support, which in turn induces change in service of the cause. But when the only motive force behind the change is the goodness of the cause, change is painfully slow.

Consider, in contrast, what happens when a cause is backed by a profit-driven industry — the pharmaceutical industry in my example. The force of that industry – more so even than the goodness of the cause — creates the potential for substantive and rapid change. Witness the eradication of so many diseases, eliminated by the might of a $700 billion global pharmaceutical industry.

I hope ideology – specifically, anti-capitalist, anti-corporatist, and social justice sympathies – doesn’t impede the ability of mediation and its practitioners to flourish and prosper. Our cause will be greatly undermined if that were to happen.

Becoming a Mediator: Am I Credible?

A Field Guide for Mediators

A Field Guide for Mediators

This can be the hardest question that mediators have to ask themselves. At least, it’s hard if the answer is ever in doubt. Clearly, the answer is not in doubt if your resume is littered with relevant credentials, experience, and accomplishments. Maybe you have a juris doctorate, a Ph.D. in psychology, or a graduate degree in conflict studies. Perhaps you’ve also completed one or more classes in mediation and have subsequently honed your skills as a seasoned volunteer community mediator. You might even have conducted several mediations as a private practitioner.

But what if the answer is No, I’m not credible, or merely an equivocal I think I’m credible, but I’m not sure. In that case, establishing credibility should be your first priority.

Credibility is relational and abstract. It derives not from objective reality. Rather, credibility emerges out of a relationship between two people — specifically, from one person’s preconceived beliefs concerning the other, and from the other’s ability to convey competence. One might say credibility lives at the intersection of prejudice and self-confidence. In other words, credentials count, but credibility grows from the inside out.

What does this mean for you as a mediator? It means you need to be appropriately confident in your skills while also mindful of how others perceive you. A focus on one without the other will not produce credibility.

[Excerpt from the acclaimed field guide for mediators, Mediating for Money: A Field Guide for Professional Mediators]

Not Mea Culpa: Mediators’ Talent for the Blame Game

Spend a little time inside any mediators’ discussion group and it won’t be long before someone complains how hard it is to be a full-time mediator. Interestingly, they invariably externalize blame, attributing it primarily to two causes: (i) prospective clients don’t understand mediation; and (ii) access to cases is controlled by lawyers or the courts.

Yet neither is true — or at least, neither is the show-stopper these hand-wringers would have us believe. Mediation has become evermore central in the dispute resolution landscape, occupying a place well beyond the purview of attorneys, the courts, or anyone else.

Exhibits A, B, C, D, and E: Peer mediation is widely taught in schools; the courts (family, small claims, civil, etc.) direct would-be litigants into mandatory mediation programs; thousands of divorcing couples independently choose divorce mediation rather than contest issues in court; attorneys frequently advocate mediation for their clients in all manner of cases; and organizations (public- and private-sector, large and small) employ mediators to address workplace issues. And that’s not even to mention specialist applications such as foreclosure mediation and malpractice mediation.

Consider also the high failure rate of new businesses in general. The Bureau of Labor Statistics reports that one-third of start-ups fail within their first two years, and less than half (44%) survive beyond their fourth year. With that sobering data in mind, Why should mediation businesses fare better than these national averages?

To suppose they would or should betrays a naiveté that is, I believe, a clue to the struggles of so many frustrated mediators. In my experience, few mediators think like successful, well-rounded business people. Rather, they are technicians only — passionate and skilled in the practice of mediation, but uninterested and under-educated in the concerns of business. Matters such as branding, marketing, pricing, cost management, entity formation, and the application of technology for strategic advantage are irksome distractions.

Mediators — perhaps because they hold the belief that mediating is a more noble endeavor than say, operating a pizza franchise or practicing as a litigator — seem to feel uniquely entitled to instant financial success. Evidently, the market doesn’t reward mediators ipso facto, just for being peacemakers, even peacemakers who would save their clients money.

This brings me to my conclusion: Mediators’ failure to internalize blame is what forces so many of them (more than the national average) to abandon their dreams of a profitable private practice.

But it is possible to build a profitable mediation practice with minimal start-up costs. And there’s no reason why you can’t apply the lessons I’ve learned to do the same for yourself. I had no special advantages in my own practice development — no juris doctorate, no therapist’s license (two of the most common backgrounds from which to build a mediation practice). Neither did I have a ready-made network of referral sources nor some rainmaker-cum-fairy godmother who sent me cases.

I’m not suggesting that pursuit of a mediation career is easy. “Don’t quit your day job!” — the clarion call of every professional mediator — is sage advice. Not just because building a mediation practice is difficult. (It is difficult, but so is building any kind of business.) It’s sage because you don’t have to quit your day job to embark on a mediation career. You can build a practice while working part-time, or at least build the foundation and achieve “proof-of-concept” before walking into your boss’s office with letter of resignation in hand.

ADR

ADR: What’s In a Name?

Many industries are known by an abbreviation or acronym. Manufacturers and installers of heating and ventilation systems describe theirs as HVAC — an abbreviation-cum-acronym for heating, ventilation, and air-conditioning. Our industry — principally, the industry of mediation, arbitration, conciliation, and negotiation — has chosen for itself the unfortunate abbreviation of ADR.
Close up shot of industrial fan while spinning
I should clarify: It is not that ADR is an unfortunate choice, but rather that for which it stands — namely, alternative dispute resolution. I’ve always had a visceral dislike for the ADR thing, the reasons for which, if you’ll indulge me, I shall articulate below.

When people are in conflict, they feel vulnerable; and when people feel vulnerable, they reach for sources of safety and strength. That which is alternative suggests neither. Alternative connotes the fringe, something potentially radical (and hence dangerous or risky) and certainly unconventional.

The term ADR established itself in the 1960s, when formal ADR processes were being conceived by the founders of the ADR movement. (Menkel Meadow, C. 2000. Mothers and Fathers of Invention: The Intellectual Founders of ADR. Ohio State Journal on Dispute Resolution. 1-37). At that time, the ADR abbreviation served its purpose, being both descriptive and well-chosen as a differentiator from litigation or violence. But the term has since, I believe, become a professional liability, scaring away many more people than it attracts.

I’m not the first to say it, but I also take issue with neutral. I don’t believe people in conflict want neutrals. They want advocates and problem-solvers — people who can and will actively engage in conflict and extricate the parties therefrom. Neutrality connotes aloofness and ineffectuality.

Mediators frequently wring their hands, troubled and frustrated by the industry’s failure to find broader acceptance. To this end, I’ve often wondered what a Madison Avenue advertising agency would do if it signed our industry as a client. The first thing, I imagine, would be a whole new lexicon. What say you?