Where Have All The Idealists Gone? Long Time Passing, Part IX

The Arguments With Myself About The Future

The use of improvisational music and artistry is what unconsciously drew me in to the field in the first place, and has kept my gears going and gives me inspiration for the future. When I hear educators try and “teach” the methods of mediation, I can’t help but think that they are missing the link between theory and reality. This holds true when lawyers simply want to start the process of a mediated settlement by exchanging numbers. While that works sometimes, it usually misses the intermediate step that involves the integration of playing the notes that create the melody of our process. For the future of mediation to hold any place in the balance of the legal system, it must hold firm on allowing the mediator to be the artist to use all the colors of the palette that are necessary to make the process an experience worth investing in. If not, mediation simply becomes an exchange of offers and demands without any context or understanding. It must also integrate the transparency that underlies the legal system so that advocates have a sense of familiarity and respect with the process.

Despite these goals, as a lawyer, I confess to being drawn to the urgency of a case that cries out for closure under almost any means. Short-circuiting the process to get an agreement can be appealing to my sense of urgency. While there is nothing wrong with being a dealmaker at any cost, in the end the process tends to be compromised and the experience of the parties less than desirable.

Upon reflection, is it possible to carry on the traditions of King and Gandhi in our field without getting drawn into the normal channels of the mundane world of litigation? Can the tension between the “idealism” and “practical” genius that King and Gandhi presented as a strategic vision of hope for the future carry forward in mediation without being homogenized, twisted and diluted. Is there a way to preserve the initial strain of idealism that inspired the lawyers and non-lawyers alike to call “mediation?”

These questions are part of my ongoing struggle as a practitioner. It is part of the crisis of purpose that began this discussion, and that could lead to further deterioration of our ideals in the future.  The humanitarian purpose of the process cannot be taken away by the legal system or it might die out. Yet, I am constantly encouraged by the willingness of decision makers to embrace a humanitarian process when it is presented in a proper and safe way by the mediator. The downward spiral of the process and the negative comments I hear are from people who haven’t been able to connect with the mediator or feel a sense of trust in the mediator’s presence. My sense is that many mediators transitioned from jobs where the skillset was very different and they believed that just because they tried hundreds of cases or sat in judgment of others that they could make music without learning the repertoire of chords and scales that it takes for the music to play.

Here’s what I hope for: That the demoralization and dilution of the process gets reversed by education of the new marketplace of lawyers who are coming out of law schools firmly educated in the value of mediation as a client driven method in their litigation strategy. That the law schools spend precious time training and educating the value of client centered dispute resolution that balances the importance of respecting the critical role of litigation counsel and their relationship to their clients. This is contrary to the original great thinkers of the 1970s who tended to dismiss lawyers from the equation. If anything, legal advocacy in mediation is an art just like the role of the mediator is that of an artist. They go hand in hand and should work together mentoring others to create a trend that respects the symbiotic nature of the relationship. This will be challenging particularly with uneducated mediators who are solely motivated by late career billable hours to make up for earlier economic challenges.

Stay tuned for Part IX: A  Practical View Of The Future.

Read Part I: Introduction

Read Part II: History

Read Part III: Early Adopters

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 X: A Practical View of the Future