Tuesday, February 28, 2012

The Future of Mediation

At a recent Harvard Law School symposium on mediation, a leading figure in the mediation world said we should challenge the "A" in ADR (alternative dispute resolution).  After all, only a small percentage of civil disputes actually go to trial, so is ADR even alternative anymore?  And if so, alternative to what?  It was an interesting point but I think that the future of mediation lies not in questioning the first letter but rather in growing beyond the second and third.

Imagine for a moment that there was no such thing as preventative medicine.  Doctors would treat illness but no one would make vaccines.  Dentists would fill or pull bad teeth but not clean them or give them a protective coating.  Chemotherapy would exist to fight cancer but no efforts would be made to reduce the incidence of cancer in the first place.

I believe that much of the mediation world is trapped in just such a world.  Framed as a subset of alternative dispute resolution, very few mediators are expanding their practice or even their research beyond situations where a serious dispute already exists.  This is unfortunate because the skills and knowledge of mediation offer a great deal of value outside of a dispute context.

Consider divorce mediation.  Recognizing the high costs and likelihood of emotional escalation inherent to an adversarial, contested divorce, mediation has grown as a popular alternative.  But both the soft skills (e.g. active listening, moving from positions to interests and avoiding a host of emotional traps) and the value creation tools of negotiation would be at least as valuable to couples hoping to strengthen their marriage, to prevent any problems from reaching the point where divorce would be their preferred option.

Companies often choose mediation to settle disputes in order to avoid expensive litigation.  Sometimes mediation enables the original business relationship to continue unharmed or even to be strengthened.  But why should mediation only be useful when an agreement has broken down?  Third party neutrals could be invaluable to companies forming new agreements, leveraging their expertise about how deals can go wrong as well as a broad range of value creation tools to help create a deal that is both durable and of maximal value.

Mediation also has a lot to offer for improving working effectiveness within companies.  We're all familiar with Dilbert cartoons that depict the common tensions between departments, e.g. engineering and sales or production and marketing.  These tensions are often based on divergent interests between the respective groups, implying that corporate retreats or "trust fall" bonding sessions will be of little use.  How much more effective might it be to have an experienced mediator train the key players in negotiation skills and then to mediate a value-creating and sustainable internal negotiation?

Overcoming self-imposed category limits is never easy, but I believe the future of mediation lies not merely in gaining "market share" in dispute resolution but in recognizing that our field can and should get involved in relationships (personal, corporate or between states) much earlier on, when the goal can be not merely minimizing damage or fixing what's been broken but improving what is to come.


  1. Interesting thought but how, in the corporate context, would you convince companies to use your "pre-breakdown" mediation services? You suggest that a neutral third party can help make a deal that will work better, but in my experience, if the parties have good lawyers, they're doing that anyway - even as an advocate, not a neutral, a good lawyer will be looking for ways to avoid difficulties once the deal is signed - and if they don't have good lawyers, they're not likely to take the advice of a third party anyway.

  2. Great question. I think persuading potential clients will be a significant challenge, to be sure. Some companies already consult with negotiators (even companies with good lawyers) but I see a neutral mediator as playing a unique roll. Just as mediators in dispute resolution can help bring out important information through private caucuses, a mediator in a joint venture negotiation (for example) could receive private information from each party and then use that to identify potential problems or value-creation possibilities.