There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that’s true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general? Law firms have dramatically shrunk in recent years as clients are less willing to shell out gigantic sums for litigation. If litigation activity is declining, one would expect that fewer parties would use mediation as a stage in the litigation process.
I think there is a larger trend going on, one that actually points in the opposite direction. I see evidence that the values behind mediation—values such as collaboration, interest analysis, problem-solving, participation, self-determination—are starting to permeate the culture. That was evident from some of the panels I attended this week. For example, one panel discussed processes that local governments are developing that allow greater citizen participation in decision-making. If all the affected groups participate in designing a project, fewer conflicts should prevent the completion of the project or deal with its impacts. In other words, if the project managers use a mediation-like process in the project development stage, they are less likely to need any kind of dispute resolution process at the end.
Another panel talked about how project design and management has changed in the construction industry, by changing contract incentives and using similar conflict-avoidance techniques. As a result, the construction industry is moving away from a culture in which all of the contractors and sub-contractors point fingers at one another when something goes wrong, to one in which all of the participants have the incentive to do what is best to allow the project to move forward.
Lawyers are talking about practicing in a less adversarial manner, introducing mediation into the litigation process, or avoiding litigation altogether. Concepts like collaborative law, integrative law, and planned early negotiations, are starting to seep into the legal profession, moving it away from the traditional adversarial model.
These cultural changes seem particularly pronounced in the younger generation, which seems steeped in more collaborative values. Technology has also made people recognize the wisdom of crowd-sourcing, and has given everyone the tools to participate in every conversation.
If there is less formal conflict resolution going on, maybe that means that the values behind mediation have already succeeded to some extent in transforming a competitive culture into a more cooperative culture. That is not to say there aren’t plenty of old-fashioned nasty and destructive conflicts still going on. Those are not going away completely or any time soon. Adversarial thinking still predominates. But if the values supporting mediation are truly taking hold, such that conflict management and avoidance are built into the system, then mediators might have to rethink the ways in which they practice their trade. Instead of thinking of mediation as an adjunct of or alternative to the court system, people trained in conflict resolution will instead end up employing their skills in a variety of roles in a more collaborative society.
by Joe Markowtiz