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

A  Practical View Of The Future

Recognizing the importance that adapting the process so that the marketplace continues to appreciate and use it, there are a number of trends that will impact the future of mediation in the court system:

• Settlement Counsel – More and more mediators are viewed as leaning toward one side or the other (plaintiff or defense; employee or management; etc). The selection of the mediator is often dependent on trying to stack the deck with a mediator who is actually a disguised person who takes sides. While some might say this selection process is fine because the mediator, contrary to a judge or arbitrator, has no say in the outcome. But those who serve as a mediator know that this is not the case. Mediators can effectuate an outcome favorable to one side or the other by the messages given to each side about the likelihood of success in the range the parties are seeking. Thus, lawyers will continue to push for mediators who either follow their ideology or simply find support in their marketplace. This is no different then electing a political leader who supports your view of the world. As this approach matures in the future, it is possible that mediators will be selected to represent one side or the other, and the mediation process as we know it will be designed with at least two mediators carrying the water of their constituency. This may not be such a bad thing as it will allow the advocates to continue to do what they do best which is argue for their position, but under this system their arguments will be directed to their privately selected mediator who will then sit down with the privately selected mediator from the other room and negotiate.

• Government Mediators – The civil justice system cannot accommodate the volume of cases that are scheduled for trial because there are not enough courtrooms or judges available. This is a known fact that has led to confirmation of statistics that more than 95% of all civil actions are resolved without a trial. Yet, the judges who manage caseloads are encouraging parties to settle out of court with the assistance of a third party. If the third party mediator is no longer viewed as impartial, and the parties simply want to get to a bidding contest, the government in their infinite wisdom will start manufacturing budgets that include space for more and more court mediators who are paid by the taxpayer and are available at the whim of the judge. This is not so far fetched when looking back at the emergence of court mediators both on the appellate level and in the Equal Opportunity Employment Commission who have been government employees for years. These government mediators have done great work and it wouldn’t be surprising if the civil court system decided to utilize that model. It is very similar to what is happening in health care with physician’s assistants. In the past, patients would make an appointment with an intern for a routine check up. Since there are not enough internists available for the population as a whole, physician’s assistants have emerged as their replacements.

• Private Commercial Mediators – The role of private commercial mediators who are viewed as truly impartial and effective in facilitating resolution will not be eliminated in the future. These highly paid consultants could emerge as a small but sought after group who handle complex cases that have not been commoditized by insurance interests. When disputes that have been categorized by professional actuaries, the value of private commercial mediators is diminished. The owners of those disputes, largely insurance companies, have developed highly successful actuarial tables that value certain streams of disputes. A mediator who pushes outside the categories will be met with resistance due to the economic pressures on the claims analysts. This will result in less use of mediation in commodity areas such as personal injury and employment, and perhaps more use in commercial and business cases.

• Interpersonal Mediators – A growing number of disputes that involve interpersonal relationships do not have access to appropriate processes through the civil justice to handle their concerns. There will be a trend among skilled advocates to recognize the need to engineer these types of disputes toward mediators who are specialists in managing interpersonal relationships. This type of case will fit in squarely with the concept of mediation formulated in the neighborhood justice center but will be transformed to apply to areas of family law, workplace issues and other similar claims that are relationship driven.

• Commodity Mediators – The area where routine disputes that are part of larger economic systems managed by institutions such as insurers will need a mechanism for efficient resolution. The court system will be the default in order to initiate the process, but corporate institutions will put pressure on their counsel to lower transaction costs (code for attorney fees). As a result, these lawyers will look to friends and colleagues who practiced in their field to serve as mediators in abbreviated processes that are completely focused on a zero sum exchange of dollars that occurs over a relatively short period of time

Conclusion

We are artists. We are idealists. We are mediators. We need to reshape our approach while at the same time carry our vision forward and express leadership to those that find value in our service, recognizing we are in service to them, not us. This type of leadership does not mean acquiescing to every whim of the people who hire us. It requires an adjustment of our ideals in a way that shows them direction so that their goals can be achieved while we do the heavy lifting that carries the torch for self-determination and empowerment. This might not work every time we set a case in motion, but aspiring toward a higher goal is a noble purpose.

For me, I will continue to make music in the manner that listens to the needs of my audience, while making sure they get refreshed each time they come to the table to have a listen.

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 IX: Arguments With Myself About The Future