The holidays are upon us, and with them come the usual stress and tension that family events often bring. Over Thanksgiving, I had an experience that put it in perspective for me. Although I am supposed to be the conflict resolution person, it was a cousin that gave me a very much needed “reality check”, if not “permission” to think differently about family loyalty.
The issue arose nearly two years ago when I made a statement to a relative (I will call her “Jane”.) that upset her. Realizing immediately what I had done, I sent her a card apologizing. Evidently, the apology was not sufficient because her response to another family member was negative. Only begrudgingly did she agree that I could be invited to an upcoming family event.
Hearing this from the family member, I decided not to attend. For the next two years, I neither saw nor spoke to Jane. (It was Jane who did not want to speak to me.)
Earlier this year, a relative from out of state proposed coming to our house for Thanksgiving and having the family over like the old days. The relative had not been here for Thanksgiving for over a decade.
For me, this proposition brought on a huge dilemma. What to do about Jane? My own instincts and my upbringing told me that family was family, and I should be loyal and forgive and forget no matter what. But, at the same time, during the last couple of years, some things had happened in my life that Jane did not even acknowledge which upset me greatly (together with the non acceptance of my apology.) The result was that I did not really want Jane to attend Thanksgiving in my house. So- what do I do?
But then, a couple of nights before Thanksgiving, several of us went out to dinner including a cousin. (I am not the only one having issues with Joe.) My cousin started discussing Jane’s behavior with me and gave me the “reality check” I needed. She understood the situation completely, and while it is idyllic that everyone gets along, in reality it does not always happen that way, and that is okay! Sometimes, family members behave quite badly to the point of “crossing the line” and if that occurs, it is okay not to include them in family events. In fact, the rest of the family may be better off as the tension and stress of having that family member there, will be absent. So… as much as I was raised on the idyllic family values of “Leave it to Beaver”, “The Donna Reed Show” and “The Nelsons”, my cousin explained that this is not “real life” and it is okay for families not to behave that way. She, in effect, gave me permission to stop hitting my head against the wall expecting a different result.
So, we had Thanksgiving dinner without Jane, and the consensus was that it was very pleasant and stress free. A very enjoyable time was had by all!
So… as much as it goes against my upbringing and family values to exclude family at holidays, I now see that it is okay to do so, if the situation warrants it. Not every family lives in Never Never Land nor will there always be a ‘happy” ending. Maybe, sometimes the “happy” ending IS the exclusion of a family member !
I post this confession as I believe it is fitting for the coming days. While we all want to get along with family and think that it is the “proper” thing to do, at the same time, we may just have to give ourselves permission or a “reality check” that is okay if everyone does NOT get along and to accept that fact and act accordingly.
…. I am going to take my annual holiday vacation from blogging and so will be back in early January 2015. Have a wonderful holiday and a great 2015!
And most of all, thank you for reading my many blogs this past year!
Recently I took on the representation of a franchisee in a very small food service system. My initial interview exposed some unique features of my client’s franchise; He was one of only a few franchisees, and his franchisor was his brother. I immediately began to get the sense that the issues and conflicts they were experiencing, although legally significant, were additionally set off and based in an emotional family dispute.
Our position was well supported, so as in most cases, there was an initial round of demand letters sent by the three lawyers, and we began, as is typical, to build our case with opposing counsel. Upon reviewing the letters it struck me that there has to be a way to get to a resolution, without blowing up the franchise system and the family. Ken Cloke’s training and philosophy came to mind; that to resolve this matter, short of litigation, delving into the “relationship” of the parties was necessary. The strategy of advancing early resolution is not always straightforward, there is the concern that opposing counsel my view your suggestion as a sign of a weak case, but in this matter that was not the case and I did not believe that would be an issue. I decided to call opposing counsel, and focus our discussion not on the substantive legal analysis, but the resolution based upon a quelling of the family related conflict. I was curious to see if they would be willing to participate in a bit of a negotiation/mediation hybrid session; allowing for early intervention that might win out over protracted litigation where there are significant emotional issues connected with the commercial dispute.
Opposing counsel, both litigators, recognized the circumstance, and agreed to participate. I have to credit them with the open mindedness to see the larger picture and focus on the client’s needs. Neither of the opposing counsel were trained mediators, but both had been in mediations so it was not a foreign process. I am a well-seasoned mediator and was confident I could design and guide a useful process, taking into account I was representing one of the parties. I built a structure for our session that included opposing counsel’s participation, which mimicked a co-mediation format. The opening introductions and instructions were split amongst the three of us. We went through the purpose of the day, mediation, client’s owning of the process and right to change it, as well as presenting them with a “Confidential Negotiation Agreement” crafted from a traditional mediation agreement, to provide a sense of comfort and openness to the parties.
The attorneys crafted a plan on how to handle the “mediation,” which included guiding the discussion; most notably asking open-ended questions to focus the clients understanding of the dispute and the other parties perceptions. We spent time drilling down to the true interests of the parties, as well as the necessity of getting through the emotional issues, before we could approach the business concerns. The mediation was 5 hours, although it felt as though it was 15 minutes. We spent quite a bit of time working out the relationship issues, discussing the reason these disputes came to be, and the emotion behind them, as well as the negative impact or perception those conflicts had on the business issues. It was interesting to note how the relationship and position (older vs. younger) in the family of the brothers growing up, directly related to the way they behaved in their business relationship, and how that realization by the parties, allowed them to understand the impact it was having in dealing with business issues.
We also were able to uncover the relationship issues between the sister-in-law’s, and their role in the business and conflict. Opening up and discussing some misperceptions they each had, that began well before the business was in existence.
We then shifted our focus on the business issues at hand. The business concerns seemed to melt away, after the initial discussions, and in fairly short order had resolved each concern and created a plan on rectifying communication, and operational deficiencies.
We created a written memo of understanding that clarified the business operations, as well as a regular meeting schedule for the parties, outside the business, to reconcile and rebuild their relationships and discuss those nagging issues that seemed to get under their skin, before they blew up. The parties hugged, cried and left with a sense of renew and understanding.
This process was unique, but served our client’s interests and needs, it began to resolve the family and business concerns, shed daylight on deep emotional issues, and in the end left them with a system or process to resolve their conflicts. We as lawyers set patterns in our handling of clients, sometimes changing the focus, or just putting ourselves into the dispute and asking “how I would I want this done if I were in this dispute?” can change the dynamic and open up opportunities for resolution.
We had the right mix of legal counsel to approach and pull this off. I took the time to understand the interests of all the parties and a sense of opposing counsel’s demeanor, which assisted in formulating this approach, and giving me the confidence to act outside the box.
David Scott Levaton, Esq FRANCHISE MEDIATION SPECIALIST
Microsoft Word – BOOK REVIEW — Susskind – Good for You (with KLS edits) FINAL .docx
Book Review: Lawrence Susskind, Good for You, Great for Me: Finding the Trading Zone and Winning at Win-Win Negotiation (PublicAffairs 2014)
As featured in IAM and the Daily Journal
By Jan Frankel Schau (ADR Services, firstname.lastname@example.org)
Sitting beside my 87-year-old parents in the mediation of a business dispute in which they were defendants in an alleged constructive fraudulent conveyance forever changed my perspective on the meaning of “winning” at negotiation. I saw what goes on in the room when the mediator leaves and what a challenge it is to create a solution that satisfies both those present and those at the “back table” in a way that permits parties to find peace and satisfaction. So it was with great eagerness that I dove into Lawrence Susskind’s new book, Good for You, Great for Me: Finding the Trading Zone and Winning at Win-Win Negotiation.
Professor Susskind, co-founder of the Program on Negotiation at Harvard Law School and founder of the Consensus Building Institute, is a thought leader in negotiation and mediation. Susskind goes beyond Getting to Yes and even beyond Professor Robert Mnookin’s Beyond Winning, to a kind of “win-win 2.0” for the next generation of negotiators, moving negotiation several steps beyond the basics.
The book is structured around six moves that can be made to assure that negotiations meet one’s objectives. First, Susskind lays out ways to lead even the most stubborn and irrational partners into an acceptable trading zone. To do this, he provides great strategies for appealing to each side’s “back table” (corporate boards, public constituents, family members) by creating sometimes unlikely coalitions and mapping that crucial territory at the outset.
Next, Susskind demonstrates creative ways to add value by proposing packages he calls “good for them and great for you.” What-If proposals assist the negotiator in figuring out what options might be available that would be best for his or her side and still within a broadly contoured trading zone. In a chapter entitled, “Expect the Unexpected: Use Contingent Offers to Claim More than the Other Side,” Susskind describes the art of improvising, contingent agreements and other insightful ways to respond to both surprise and lack of rationality, and even lies in negotiations.
I found it fascinating that Susskind advocates that negotiators “write the victory speech” for the other side. What that means is to win by ensuring that the back table of your opponent approves the deal best for you. He suggests that most apparent two-party negotiations are actually multiparty negotiations when you consider those seated at the back table who need to be included in a winning coalition that facilitates their ultimate acceptance of the final deal.
Susskind’s focus is on both offense (how to create a coalition that will approve your best deal) and defense (how to block a coalition that may thwart your efforts). It frankly had not occurred to me that negotiators should always identify and consider not only their own BATNA (best alternative to a negotiated agreement), but the other side’s BATNA as well. This simple, elegant bit of advice could be valuable in every mediation.
Once you arrive within the trading zone, each side needs to communicate to the other’s back table that their negotiator may be turning down a “very reasonable offer” which at a bare minimum satisfies their needs in the negotiation, because their negotiator believes the alternative may be better. Once that reasonable offer has been made, the back table may weigh in on their appetite for risk and their confidence in their negotiator’s ability.
Susskind suggests that a shrewd negotiator will eventually offer a counterpart two options
(both acceptable to his own side), with a request to check with their back table about which of the two proposals they prefer. Susskind recognizes that negotiation seldom goes as planned, even with the best strategies. In fact, he discusses “predictable surprises” and identifies ways to bring talks back on track.
As a thought leader, he also offers ideas about facilitation by professional neutrals in business, construction, and public governance, and even suggests a need for “dispute prevention,” rather than merely turning to professional neutrals once a dispute has arisen.
Finally, the author suggests that as organizations flatten by eliminating multiple layers of management, encouraging cooperation becomes paramount if the organizations are to move forward productively and harmoniously. Susskind does not advocate compromise, but rather “facilitative leadership,” by which he means helping teams and networks of employees and partners set workable agendas, solve problems in creative ways, and support one another when confronted by expected and unexpected obstacles.
Good for You, Great for Me ends with a coda called, “Finding the Sweet Spot in Your Next Negotiation,” in which Susskind notes that most negotiators fail to probe carefully into what the other side wants and needs, which makes it harder to enter the trading zone. Traditional “hard bargaining” may backfire because the other side may walk away from the negotiation if they think it is headed hopelessly out of bounds. He advocates investing heavily in value creation: new product lines or not-yet-considered business alliances.
It is refreshing and insightful to avoid compromise and concessions by focusing on win-win negotiations. Susskind is adamant that no negotiator should ever accept an agreement that is worse than no agreement. Sub-optimal deals for either side are not what we are after. What we seek is being confident in negotiating a solution that satisfies all parties by meeting or exceeding their “walk away” point and then finding the sweet spot of victory in getting even beyond that in the outcome. If you are facing a skilled negotiator, she will already have written your victory speech to your back table so that you and your clients can hold your heads up and claim a win that you achieved. This requires both empathy and self-interested cooperation. After all, “[t]he point of win-win negotiation is not to make friends, it is to get a good deal, maintain or improve relationships, and enhance your reputation.”
Good for You, Great for Me is worth your time as a guide to creating more value and success in every negotiation. I highly recommend it.
The charisma of the designation “trial lawyer” is not shared by “negotiator.” However, since less than 5 percent of civil cases go through trial, enhancing your negotiating repertoire will likely reap rewards. In contrast to trial, where control of the outcome rests with the Court and/or Jury, a skilled negotiator can retain control of the outcome for the client. Therefore, it behooves the prudent litigator to augment your negotiator prowess. In the past, negotiation was not a part of law school curriculum. Today, law schools have entire sections devoted to negotiation and allied disciplines (e.g., mediation). While there is much to be gained from these courses of study, simply adding the following implements to your negotiator’s tool belt will likely have a positive impact on your scorecard.
Develop a game plan for your negotiations. Research key issues, check jury verdicts for results in similar cases and work out a realistic evaluation of your client’s case. Identify the issues, risks and interests of your client and opponents. Outlining your offers and responses to anticipated counters enables you to maintain the tempo of the process, during actual negotiations. Look for “value added” non-monetary items such as an apology that can be just what is needed to clinch a deal. Googling opponents may yield valuable insights for your strategy. An absolutely inviolable rule is to provide your adversary with sufficient information (e.g., records, data and evidence) to obtain maximum authority.
Try a little civility. Start by setting a more positive tone for your negotiations at the outset. Instead of insisting on your preferred mediator, engage your opponent in a more collaborative way by asking for suggestions. This is likely to create a more collegial interaction for the negotiations. In pre-mediation communication such as teleconferences, refraining from pyrotechnics is more likely to build trust that can pay dividends as the negotiations progress.
If adversarial “hardball” tactics are not settling your cases, isn’t continuing imprudent? If you want your opponent to agree with your position on issues, is belittling your opponent’s case, overstating yours, or making pejorative comments the key to making that happen? Ratchet down your rhetoric. The same applies to puffing and posturing with excessive demands countered by lowball offers and the tired old classics “… I won’t negotiate against myself!” Avoid being drawn into personality conflicts (it is your clients’ case, it is not about you).
Instead follow the lead of the masters, “… When negotiations stall, stop (to think), look (keep your eyes on the prize), identify the stakeholders and listen (to yourself; reactions and emotions) then step to their side (step into their shoes), listen more than talk, acknowledge their point …” For those accustomed to the “settlement conference model,” in which the Judge dictates the process and does the heavy lifting by pressuring and cajoling the parties to remove the case from the docket, it may take some time and effort to develop a comfortable transition.
Include a “plan B” to deal with unforeseen roadblocks. If in the midst of negotiations, your client is stuck, is unrealistic or is fixated on a zero sum game, consider requesting a mediator proposal. This non-binding tool can be an effective way of easing the process past a stalemate. Another possibility is med-arb. This hybrid process has a history in labor-management and commercial disputes, though it is not without its’ detractors.
Be mindful of cultural differences, which can scuttle a resolution if not handled adroitly. If you don’t have a copy of “Kiss, Bow or Shake Hands”, it’s a great quick resource for avoiding cultural faux pas. A person’s culture or cultural identity is formed by a constellation of factors, inter alia, education, religiosity, ethnicity, social affiliations, vocation, gender identity and philosophic perspective. “Culture is more often a source of conflict than synergy …” Gender based stylistic differences in speech must also be considered in your strategy. Women tend to engage in “rapport” talk, which they tend to lace with validation, while engaging in non-verbal conduct (nodding, leaning forward coupled with eye direct contact). Men generally use “report” speech to convey information.
Don’t overlook your client’s role in the negotiations. Make sure that you and your client(s) are on the same page. Reduce client anxiety by making sure that there is an understanding of the negotiation process and the client’s role. In contrast to the ‘settlement conference model” your client’s participation is likely to be the key to maximizing the outcome. Restricting the client’s role to speaking only through you is likely to constrict the negotiations. Don’t scrimp on the time devoted to client preparation lest your client’s misconceptions about the process will undermine the negotiations. Make sure your client understands that not being combative is not capitulation and that shaking hands with opposing counsel is strategic, not selling out. Be sure that you and your client allocate sufficient time for the negotiations. Leaving the mediation before its completion regardless of the reason, may cause irreparable harm to the negotiations.
Preparation of a brief statement of your client’s case serves multiple essential functions. It will cause you to focus on key issues and how to deal with them. Word selection in the drafting of your brief and framing demands can pay dividends. Providing a copy of your brief to your client will aid client preparation and minimize the likelihood of mishaps during the negotiation process. The brief should be focused on the issues and only long enough to cover them. Provide a copy of the brief to your opponents to ensure that they will come to the table with sufficient authority. Finally, make sure to provide the brief to all necessary parties, including the mediator, sufficiently in advance of the negotiations. Otherwise, your mediator will be required to learn about the case during the mediation session, which will add to its length and cost.
In an earlier century a country lawyer said “… discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser–in fees, expenses, and waste of time …” So follow the lead of Abraham Lincoln, one of our wisest presidents. Prepare, keep a cool head and remember that compromise is not a dirty word, it is synonymous with negotiation.
 Beyond Winning(supra, pages254-261
 Legal Counseling, Negotiating and Mediating: A Practical ApproachbyG. Nicolas Herman, Jean M. Cary (pages 230-231, 268-269); Negotiation Mastery for the Legal Pro by Douglas E. Noll (pages 82-85)
 The Power of Apology by Beverly Engel.
 Beyond Winning(Robert H. Mnookin 2000, pages 24-43)
 Getting to Yes, Negotiating Agreement Without Giving In(Roger Fisher, William Ury and Bruce Patton, 1991 update of the original)
 Med-Arb and Its Variants: Ethical Issues for Parties and Neutrals. by Richard Fullerton; See also Med-Arb: The Best of Both Worlds May Be Too Good to be True; by Brian A. Pappas; Note that AAAdoes not recommend same-neutral med-arb “except in unusual circumstances because it could inhibit the candor which should characterize the mediation process and/or it could convey evidence, legal points or settlement positions exparte improperly influencing the arbitrator.” However, the AAAsays it will administer a case using same-neutral med-arb if that is what the parties want. JAMS, also, does not recommend same-neutral med-arb, but will administer such a process if the parties expressly agree to it. The International Institute for Conflict Prevention and Resolution (CPR), on the other hand, promotes having two neutrals. “[T]o ensure the integrity of the arbitration process, Med/ Arb agreements should provide that then arbitrator shall not be the same person who served as mediator in the matter.”‘? In contrast, Deborah Katz of the Expanded Conflict Management Processes Committee of the Dispute Resolution Section of the ABA has said: After completing the mediation session, it is not unusual for the parties to agree to have the mediator continue on as the arbitrator as long as the parties do not feel that they have shared any private or confidential information with the mediator that might adversely affect the decision of the mediator/arbitrator.” No professional dispute organization has been found that recommends the practice of med-arb without conditions.
A former mentor and professor during my MDR training at the Straus Institute in LA, Jeffrey Krivis, impressed the analogous format and tools of Improvisation that may be applicable in our capacities as Dispute Resolvers.
Many Jazz musicians, who are true “improv” artists, feel and know that once the rhythm starts we are compelled to play the song through and complete the set — much akin to this human desire and innate compulsion to play a conflict dynamic through once it is initiated.
Conflicts have ebbs and flows that Dispute Resolvers can tap into, essentially harnessing the conflict dynamic the Disputants are experiencing into a conciliatory or at least constructive direction.
Needless to say, the Disputants have a duty of mindfulness to their experience and response, being in the “conflict dynamic.” Disputants can seize the opportunity to contribute and “play along” to the improvisational rhythm being orchestrated by the Dispute Resolver, rather than hampering or blocking the inevitable progression.
In my own Dispute Resolution practice dealing with business owners on high-stakes disputes as a Negotiation Counsel, implementing and assimilating Improvisational techniques has added value and strengthened my effectiveness.
For brief instance, once the conflict beckons us to participate, we cannot resist the flow or control the dynamic, merely adding direction and some semblance of order to the conflict rhythm unfolding. If you beg to differ, try pausing a Jazz set to direct your cohorts, then resume the set — the feel and buzz of the moment will be lost, and seasoned musicians like Louis “Sachmouth” Armstrong were renowned for picking up anywhere in the beat and flowing with it to make harmonious sets come to fruition.
Improvisation has a core principal of “Yes, and…” that teaches to take whatever the dynamic throws at you, and build upon it moving forward, essentially developing momentum to move the trajectory and flow of the session forward in a constructive manner, which can sometimes be its own form of “making music.”
So, consider exploring Improvisational techniques or understanding to help produce “a peaceful rhythm” during your future sessions as Dispute Resolvers.
In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which “… operates automatically and quickly, with little or no effort and no sense of voluntary control” (Id. at 20) and System 2 which “…allocates attention to the effortful mental activities that demand it, including complex computations….” (Id. at 21.)
Thus, while System 1 is quick, automatic and requires little or no effort, System 2 is deliberative, effortful and requires our attention and concentration. (Id. at 22-23.). As a consequence, most of our cognitive errors and biases occur within System 1 since it operates unconsciously and cannot be turned off. System 2, on the other hand, because it requires a lot of effort and attention, will literally deplete our mental energy through our expenditure of glucose. When this occurs, we will fall back on System 1 for decision making and being tired, and hungry, will make poor decisions.
I explain System 1 and 2, simplistically, as it explains a study I came upon in the May 17, 2014 edition of The Economist entitled “Gained in Translation”. The study determined that when we have to make a decision speaking a second language (in which we are conversant but not as fluent as in our native tongue), we tend to be more morally and emotionally detached.
Dr. Albert Costa of the Universitat Pompeu Fabra in Spain and his colleagues used the following well-known moral challenge:
…you are on a footbridge watching a trolley speeding down a track that will kill five unsuspecting people. You can push a fat man over the bridge onto the tracks to save the five. (You cannot stop the trolley by jumping yourself, only the fat man is heavy enough.) Would you do it? (Id.)
As the article explains:
Most people quail at the idea of shoving the man to his death. But alter the scenario a bit, and reactions change. People are more likely to throw a switch that would divert the trolley on to another track where it will kill only one person. The utilitarian calculation is identical—but the physical and emotional distance from the killing makes throwing the switch much more popular than throwing the man. (Id.)
Dr. Costa conducted an experiment to see if this result would be different if the person was responding in a second language. He and his colleagues interviewed 317 people, “all of whom spoke two languages- mostly English plus one of Spanish, Korean or French. Half of each group was randomly assigned the dilemma in their native tongue. The other half answered the problem in their second language.” (Id.)
What the researchers discovered was that when the subjects were asked the dilemma in their native tongue, only 20% said they would push the fat man. However, when asked in their second language, the percentage jumped to 33%! (Id.)
Why? The researchers think it has to do with “… the difference between being merely competent in a foreign language and being fluent.” (Id.) The participants in the study were competent but not fluent in the second language. Having to speak the foreign language, the subjects were required to use System 2 thinking which requires much effort and a lot of mental energy. System 2 is also slower, providing more logical, more reasoned and detached thinking. (Think Dr. Spock of Star Trek fame!)
My conclusion on this is that either our System 1 does not kick in so that we are making decisions in a detached, logical fashion, or depending upon how much mental energy we have used up in System 2 (i.e. Glucose depletion), System 1 does kick in ( as is typical when we are tired) causing us to make intuitive, irrational and thus, very poor decisions. (Recall the bad decisions you have made when you are tired and hungry!)
The researchers further note that this study “… fits in with other research that speaking a foreign language boosts the second system-provided, that is, you don’t speak it as well as a native.” That is, in a foreign tongue, one tends to be more logical, and thus more psychological and emotionally distant from the issue at hand. (Id.)
So, the next time you have to make a decision in a second language, be careful; it may not be the same one you would make if you were using your native language.
[Excerpted from The Dance of Opposites: Explorations in Mediation, Dialogue, and Conflict Resolution Systems Design, goodmedia 2013.]
“Human history becomes more and more a race between education and catastrophe.”
H. G. Wells
The oil spill by British Petroleum in the Gulf of Mexico several years ago highlights an escalating set of difficulties in our responses to environmental catastrophes, with echoes that resonate and reverberate with experiences responding to Hurricane Katrina in New Orleans, earthquakes in Haiti and Peru, firestorms in Russia, flooding in Pakistan, tsunamis in Indonesia and Japan, and others.
As population, technology, and globalization continue to expand, so undoubtedly will environmental deterioration, including global warming, allowing us to reasonably anticipate, and perhaps predict the following outcomes:
That environmental disasters will become more widespread, severe, impactful, costly, and common;
That conflicts will be triggered by these events, and escalate as more individuals, groups, nations and eco-systems are impacted;
That these conflicts will accumulate around the failures in local, national, and global emergency response systems;
That the ability to resolve these conflicts quickly and effectively will have a direct impact on the degree of damage they create;
That mediation, collaborative negotiation, and allied conflict resolution methodologies will increasingly be used to address and resolve disputes that result from climate change and environmental disasters.
The Logical Chain
There is a more detailed chain of logic that can be offered to support these ideas, which proceeds as follows: As human populations have grown more numerous and technologically advanced, we have naturally had a greater ecological impact on the planet. Simply by not paying attention to these impacts for centuries and seeking to maximize our separate competitive short-term advantage as nations, corporations, and separated communities, we have wasted exhaustible resources, despoiled and desecrated our environment, and created the preconditions for mass extinctions and global catastrophe.
As a consequence, it is no longer possible to pursue non-sustainable approaches to survival, particularly those that aggravate the problems we already face. Instead, these problems demand not only the collective attention of everyone, but respectful, collaborative, democratic ways of communicating; complex, creative, paradoxical ways of solving problems; and interest-based methods for negotiating, discussing, and resolving conflicts over how to address them. Without these shifts, it is likely that many people around the planet will not survive.
How do we know that this is true? A number of far-reaching environmental changes have been taking place on a global scale for some time, and increasing in their pace, momentum, and potential to inflict disastrous consequences on human societies internationally. Perhaps the most important of these changes is that the rate of change is itself changing, in an exponential direction.
Changes in the natural world can, of course, take place incrementally and piece by piece or exponentially and with increasing rapidity. Exponential changes look something like this:
Many of the most serious problems we face today reveal rates of change that can arguably be plotted along this curve. These include, but are by no means limited to, the following:
The size and density of human population;
CO2 and methane emissions that increase global warming;
Loss of bio-diversity;
Loss of tropical rainforest and woodland;
Desertification, erosion, and loss of arable land;
Decreasing genetic diversity in agricultural commodities;
Loss of potable water;
Loss of fish stocks;
Resistance to antibiotics;
Pollution, loss of bio-degradability, and use of toxic chemicals
Vulnerability to pandemics;
Rising cost of medical care;
Disruption of weather patterns;
Increasing severity of natural catastrophes and weather conditions;
The global effect of local, relatively minor environmental decisions.
In addition to these, we are facing worldwide problems in other areas that can easily trigger severe environmental consequences, escalate conflicts, and make it more difficult for us to solve these problems, including:
The increasing destructive power and availability of military technology;
Willingness to use war and resort to violence;
Intentional targeting of civilians in warfare;
Terrorism and unending cycles of revenge and retaliation;
Acceptability of the use of torture and cruelty in response;
Global financial crises;
Financial cutbacks in government services, especially in education, corporate regulation, and science and technology;
Unregulated economic transactions;
Increasing poverty, social inequality, and economic inequity;
Destabilization due to political autocracy and dictatorship;
Rise in prejudice and intolerance;
Hostility to immigrants, refugees, minorities, and outsiders;
Genocidal policies and “ethnic cleansing”;
Growth of the drug trade, sexual trafficking, and organized crime.
In Collapse, Jared Diamond argues from somewhat different premises that we are presently facing 12 sources of ecological and social collapse, each of which is growing steadily and has to be solved correctly in order to avoid catastrophic consequences.
Deforestation and habitat destruction
Soil problems (erosion, salinization, and soil fertility losses)
Water management problems
Effects of introduced species on native species
Human population growth
Increased per-capita impact of people
Human-caused climate change
Buildup of toxic chemicals in the environment
Full human utilization of the Earth’s photosynthetic capacity
In Diamond’s well-researched account, it was rare for earlier societies to face more than one of these crises at a time, or for them to spread beyond local environmental limits, yet all seem to be occurring today, and no place on the planet is safe. Moreover, globalization has introduced a synergistic element into the feedback loop, allowing each of these crises to deepen and aggravate the others, speeding the rate of collapse and spreading it around the world.
Diamond also provides a framework for assessing the likelihood of environmental collapse, which includes a quantitative and qualitative assessment of the following criteria:
Friendly trade partners
Society’s responses to its environmental problems
Diamond does not explicitly cite funding for education, science and technology, or support for the use of a rich array of conflict resolution methods, yet the willingness to use mediation, collaboration negotiation, public dialogue, group facilitation, conflict resolution systems design, and similar conflict resolution techniques needs to be included in any realistic assessment of the likelihood of eventual ecological collapse. This is extremely important for our purposes, as we will see, since it places mediation at the very center of international efforts to prevent and respond to environmental disasters.
In a different, calmer, and therefore more shocking analysis, a number of scientific experts in different fields were asked in 2013 by Scientific American to estimate the limits on growth, citing preindustrial levels, current levels, and their best estimate of the boundary beyond which more serious consequences might occur. Their results were as follows:
1. Climate Change:
Preindustrial CO2 = 280 ppm
Current = 387
Boundary = 350
2. Ocean Acidification:
Preindustrial Aragonite saturation = 3.44 Omega units
Current = 2.90
Boundary = 2.75
3. Stratospheric Ozone Depletion:
Preindustrial value = 290 Dobson units
Current = 283
Boundary = 276
4. Nitrogen Removal:
Preindustrial value = 0 tons/year nitrogen removal from atmosphere
Current = 133
Boundary = 39
5. Phosphorous Cycle:
Preindustrial value = 1 ton/year flow into oceans
Current = 10
Boundary = 12
6. Freshwater Use:
Preindustrial value = 415 cubic kilometers/year
Current = 2,600
Boundary = 4,000
7. Land Use:
Preindustrial value = Negligible conversion to cropland
Current = 11.7%
Boundary = 15%
8. Biodiversity Loss:
Preindustrial value = 0.1 to 1.0 species per year
Current = 100
Boundary = 10
9. Aerosol Loading:
Preindustrial value = Negligible particulate concentration in atmosphere
Current = Undetermined
Boundary = Undetermined
10. Chemical Pollution:
Preindustrial value = Negligible amount emitted to or concentrated in the environment
Current = Undetermined
Boundary = Undetermined
[Boundaries for a Healthy Planet, Scientific American, April 2010]
In most of these cases, there is a growing scientific consensus that we are well beyond the boundary conditions that permit environmental sustainability. A wide range of scientific reports from around the world confirm the existence of these problems, the urgent need for solutions, and the devastating consequences of failing to address them. In addition, a number of these problems are synergistically related to others, so that deterioration in one will likely cause increased deterioration in others.
How is it possible for any of us to read this information calmly and do nothing about it? We have buried our heads in the sand for far too long and ignored escalating evidence that we are tilting our world in an unsustainable direction that will predictably result in environmental catastrophes.
Narrowing our focus to the issue of climate change, even conservative scientific studies document the following significant shifts in recent years, with each appearing to increase irregularly on an annual basis, but significantly over decades. To demonstrate that global warming is happening, the following statistics for the 20th century were presented in scientific papers circulated at the United Nations Copenhagen Climate Change Conference in 2009, which I attended with a team from Mediators Beyond Borders:
Global-average sea level has increased by 10–20 cm during 20th century;
There has been a 0.5–1 percent per decade increase in Northern Hemisphere mid-latitude precipitation during 20th century’;
There has been a 2–4 percent increase in frequency of heavy precipitation events in Northern Hemisphere mid- and high-latitudes over latter half of 20th century.
More recent studies have developed forecasts for the future impact of climate change that conservatively, to my mind, include the following projections:
Global-average surface temperature is expected to increase by from 1.4 ºC to 5.8 ºC by 2100, a rate of warming that is unprecedented in the last 10,000 years;
Land areas will warm more than the global average;
Global average precipitation will increase over the 21st century, with more intense precipitation events and irregular precipitation in areas that have become accustomed to stable rainfall;
Snow cover and sea-ice are projected to decrease dramatically;
Glaciers and icecaps are projected to continue their widespread retreat;
Global mean sea-level is projected to increase by nine to 88 cm or more by 2100, and in some reports, by as much as two to five meters;
There will be a loss of agricultural stability as crops requiring temperate weather such as cereals move steadily north.
The list of evidence continues, but somehow exceeds our ability to grasp. One reason may be that we are surrounded with so many other, more immediate and palpable catastrophes. Another may be that the news media make so much of catastrophe in order to attract customers to secure the advertising that pays their way, and does not want to cover anything that might be bad for business or advertising revenues. A third reason may be that while many of these changes are taking place rapidly, and in some cases exponentially, several interdependent yet equally critical changes are taking place only gradually, allowing us to feel that something is in fact being done about them,
Moreover, responding to global environmental disasters and climate change will require a dramatic increase in our ability to mount a sustained, energetic, collaborative global response, which will inevitably have to include finding solutions for a much broader range of social, economic and political problems, such as:
Implementation of solutions to poverty and hunger;
Reductions in bigotry and prejudice;
Fewer assertions of territoriality;
Decreased willingness to use warfare, torture, and threats of force;
Reduced vulnerability of civilian populations to terror;
Increased effectiveness of national and international regulatory institutions;
Less openness of political institutions, including in the U.S., to corporate influence, bribery, and control;
Regulation of currency speculators, hedge funds, and multinational corporations;
Increasing life expectancy and reducing child mortality;
Responses to amplified vulnerability to infectious diseases;
Reducing the rising cost of medical care;
Elimination of illiteracy;
Improvements in the treatment of women and children;
More rapid government responses to ecological problems;
Improved methods of international cooperation;
Greater acceptance, expanded training, and widespread institutionalization of conflict resolution;
Far greater awareness of the extent, seriousness and exponential increase in many environmental and climate change indicators.
The last item deserves a more detailed explanation. One of the main difficulties in responding to exponential changes is that our awareness and understanding are not equipped to recognize it, and inevitably lag behind even the hardest scientific evidence. As Albert Einstein ominously wrote following the explosion of atomic bombs over Hiroshima and Nagasaki, “Everything has changed, except the way we think.” Yet the way we think is perhaps the largest part of the problem, reminding us that, as Einstein also famously observed, “The significant problems we face cannot be solved at the same level of thinking we were at when we created them.”
There is a wonderful story told by science writer K. C. Cole that illustrates the difference between exponential and incremental change and highlights our difficulty in assessing its importance: Assume for a moment that two bacteria are living inside a bottle, and that they reproduce and double in number once each minute, allowing us to predict that at the end of one hour they will completely fill the bottle. How much advance warning will they have that they are about to do so?
The answer is nearly none, since at 58 minutes before the hour, with only two minutes remaining, the bottle is only a quarter full. At 59 minutes, with one minute remaining, the bottle is still only half full. In another minute the bottle will be filled, and in another, the bacteria will fill an entire second bottle. It is unfortunate, yet entirely possible, that we are now just a minute or two from irreversible environmental collapse.
A similar example comes from an ancient story of a king who offered a mathematician who performed an important service anything he wanted in return. Seeing a chessboard nearby, the mathematician asked for a single grain of rice, which would be placed on the first square, two on the second, four on the third, etc. The king agreed, not realizing that before reaching the 64th square, he would be giving away more grains of rice than there are grains of sand on Earth. Global Interdependency
We know from the scientific study of chaos and complexity that the flapping of a butterfly’s wings in the Amazonian rainforest can trigger a tornado in Texas. Is it not equally possible for the killing an unarmed civilian by a U.S. soldier in Baghdad to spark a hurricane of political anger that results in the death of equally unarmed civilians in an unrelated city elsewhere on the planet? Or for a small mistake in the hierarchical transmission of safety information at BP to devastate an entire ecosystem?
The scientific definition of chaos is “sensitive dependence on initial conditions.” As any system approaches criticality and begins to undergo a “phase transition,” its previously stable systemic make-up becomes increasingly unstable and dependent on minor fluctuations in its environment. This scientific metaphor suggests that instability in the social, economic, political, and environmental conditions in one region can dramatic impact people in other regions.
The science of ecology reveals that the loss of even a single important species can rapidly turn catastrophic for others, triggering a cascade of consequences vastly greater than anything we might have imagined beforehand. The same can be said of seemingly isolated events, such as those that followed the elimination of apartheid in South Africa, the collapse of Enron, or the assassination of Archduke Ferdinand prior to World War I.
If we consider, for example, avian influenza, or bird flu, it is clear that extreme poverty and a consequent reliance on domestic poultry for survival anywhere in the world will create favorable conditions for the H5N1 virus to mutate into a form transmissible by air between human beings. The ease of international travel, panic, and a desire to escape infection could then spread the virus rapidly to other countries, creating a platform for global pandemic.
Similarly, with regard to global warming, without a coordinated international response, scientists are nearly unanimous that significant temperature increases will occur before the end of the current century, leading to rising sea levels that will inundate many of the world’s urban centers, triggering mass migrations, heightened competition for scarce resources, militaristic responses, and political polarizations that will make environmental problems more difficult to solve.
As we become more interdependent, a disaster in one part of the planet can easily turn into a catastrophe elsewhere, making it clear that global problems require global solutions. As climate is naturally chaotic and unpredictable, even small, seemingly insignificant changes can produce vastly larger ones later. The Problem with Existing Solutions
To solve any of the problems I have mentioned, and others we will inevitably confront as we develop and expand, all the disparate nations races, religions, cultures, societies, organizations, and institutions on the planet will need to learn how to work together to solve their common problems. To do so, we need better ways of communicating with each other, expanded skills in open and honest dialogue, and better techniques for solving problems, negotiating collaboratively, and resolving disputes without warfare, coercion, and other adversarial methods.
This may sound simplistic, even idealistic. Clearly, our history of working together to solve pressing social, economic, political, and ecological problems offers few reasons for unabashed confidence. Instead, it reveals an astonishing record of avoidable disasters, pointless miseries and needless deaths. For centuries, we have gotten away with murder, and no longer have resources to waste.
What is worse, these escalating problems cannot be solved completely or in time by nation states, or by large groups of countries, or by the use of military, legalistic, bureaucratic, or autocratic methods. Indeed, none of the following well-established, centuries-old problem solving mechanisms by themselves can succeed in solving these problems:
Negotiated treaties and international agreements;
Legal interventions, litigation, and the rule of law;
Administrative rules and regulations or policies and procedures;
Power-based diplomatic negotiations;
National political leaders and institutions;
Capitalism and market principles;
The United Nations, as presently constituted.
So what is left? The answer is, we are, we as citizens and we as mediators. While it sounds ridiculous, when it comes to solving global problems, mediation can make a difference. The good news is that as our problems have multiplied, so has our social and technological ability to solve them. We have vastly increased our scientific and technological capabilities in recent years, and have also enormously improved our understanding and skills in effective communication, group facilitation, creative problem solving, public dialogue, conflict coaching, collaborative negotiation, prejudice reduction and bias awareness, mediation, conflict resolution system design, and similar methods. And it is precisely these skills that we now need in order to “save the planet.”
If we consider the BP gulf oil spill as an example, there were numerous well-recognized long-term problems that led to that environmental disaster, or contributed to making it worse. In my mind, these include:
Dependence on fossil fuels;
Powerful oil and gas companies with assets and sales larger than the gross domestic products of all but a handful of nations;
Inadequate market mechanisms to dampen the lust for quick profits, creating an incentive to cut corners on costs, including safety;
Regulatory agencies that are led, managed and lobbied by people who pay greater attention to corporate influence than public safety and environmental sustainability;
Disputes over how to manage the off-shore platform that were resolved hierarchically, bureaucratically, and autocratically, leaving those with direct experience of the problem without the power or authority to solve it;
Concentrating the problem solving authority in the hands of those who were more concerned with company profits than safety or environmental damage.
In the BP spill, as in the Exxon Valdez spill before it, there was a concerted effort in political circles and the media to find someone to blame for what happened. Yet a secondary effect of blaming individuals is that the systems that permitted, caused, or encouraged the mistake are ignored and let off the hook, increasing the likelihood that there will be fresh occurrences in the future.
As described above, it is likely that environmental catastrophes are increasing in frequency, reach and cost, and in the process, are generating conflicts around the world, including arguments over causation, responsibility, and competition for scarce aid resources. Without mediation, open dialogue, collaborative negotiation, and a common approach to implementing solutions to these problems, improving aid and recovery, and systemic preventative approach to future disasters, relief will be less effective, and delayed by years, if not decades.
In responding to BP and similar disasters, and in efforts to negotiate climate change issues at Copenhagen and similar international problem solving endeavors, political leaders, envoys and delegates continue to rely on classic international diplomatic processes, which are, for the most part, adversarial, distributive and power-based, and tend to have the following characteristics:
Complex rules, protocols, policies, and procedures that make the process arduous, bureaucratic and confusing, and discourage conversation, participation and informal problem solving;
Large, formal, highly structured meetings with processes that are influenced by political agendas, that attempt to consider multiple wide-ranging proposals to modify the language of proposed legal agreements;
Limited opportunities for small, informal, unstructured conversations with open agendas, collaborative dialogues, and creative processes designed to satisfy common interests;
Public declarations, official statements and pronouncements in which positions are elaborated without engaging in genuine exchanges, admitting mistakes, or stopping to discuss important questions, critiques and alternative approaches;
• Traditional behind the scenes “hardball” negotiations, with arm-twisting, hidden agendas and adversarial, competitive bargaining tactics in which the largest, most powerful and wealthiest parties “win,” while others “lose” and leave feeling excluded, disempowered and disrespected;
• Disagreements over diverse approaches and proposals that escalate into hardened positions and avoidable conflicts that result in impasse because there are no conflict resolution processes or professionals available who are empowered to assist in clarifying communications, brainstorming options, facilitating dialogue, and mediating solutions.
Mediators, facilitators, ombudsmen, and other conflict resolution professionals have had considerable experience designing effective problem solving, communication, negotiation, and conflict resolution processes over several decades, and would agree that there are much better ways of reaching agreements and that unsuccessful outcomes are not inevitable. It would be possible, for example, for the United Nations, without significant financial investments, to measurably improve the quality of its meetings and negotiations at important climate change events in at least the following 20 ways, by:
Conducting an in-depth, broadly inclusive, collaborative evaluation of the process used in Copenhagen and other climate change meetings to identify what worked and what could be improved;
Consulting widely with diverse public and private sector organizations and individuals who have experience designing dispute resolution systems and can provide ways of improving the entire negotiation process;
Developing a comprehensive set of process recommendations for future talks and securing agreement to implement them prior to the session, and brief delegates on them before they arrive;
Creating international negotiation and conflict resolution protocols, model mediation language, and annexes to existing agreements that encourage a broad range of collaborative interest-based dispute resolution processes, including mediation, ombudsmen, facilitated dialogue, and similar methods;
Asking each delegation to future talks to include among their members one or more trained mediators, collaborative negotiators, ombudsmen, or small group facilitators who can assist in bridging differences as they occur;
Assigning one or more UN mediators or ombudsmen to every delegation, and to each small group and problem solving meeting;
Sending experienced negotiators, facilitators, ombudsmen, and mediators to meet with the parties in advance of conferences and negotiating sessions to help set targets and timetables and encourage compromises that could lead to better and quicker agreements;
Drastically simplifying and reducing the rigidity and formality of protocols, rules and official processes, especially as they effect the negotiation and agreement writing process;
Shortening large meetings and breaking participants up into small, diverse, informal teams to brainstorm alternatives, agree on common goals or shared values, and reach consensus recommendations on specific problems, led by facilitators and mediators;
Offering free trainings throughout the process for individual delegations and teams in collaborative negotiation, group facilitation, and conflict resolution;
Reaching agreement on a variety of next steps that can be taken when consensus is not reached, including dialogue, informal problem solving, collaborative negotiation and mediation;
Appointing fast-forming, diverse problem solving teams with experts representing all nations, regions, groups, types of alternatives and ranges of opinion, with professional facilitators and recorders to aid them in their work;
Facilitating meetings of climate change experts and scientists to develop consensus-based recommendations, including them on problem solving teams, and convening meetings of diverse specialists to advise delegates on specific topics;
Conducting frequent open dialogue sessions on critical topics without attempting to reach agreement and providing multiple opportunities for free-ranging small group discussions, and open recommendations for ways of reaching consensus;
Appointing facilitators, ombudsmen, and mediators in advance for every meeting and asking them to recommend ways of improving the meeting;
Focusing not only on reaching a single comprehensive agreement, but also on smaller, specialized, limited, tentative, provisional, national, regional and bloc agreements as well, then work to accumulate and amalgamate them into a single draft;
Periodically conducting process checks to make sure everything is on track and making improvements as needed;
Allowing facilitators to stop the process if it isn’t working, discuss it openly, invite suggestions, and propose ways of improving it;
Considering the entire multi-year agreement drafting process as a conflict system and using conflict resolution systems design principles to develop better ways of responding to obstacles, impasses and conflicts as they occur;
Continuing to search for preventative measures that can be adopted by all parties and UN organizations, that will help reduce the severity of future problems.
In these ways, it is possible for professional mediators, collaborative negotiators, ombudsmen, group facilitators, and conflict resolution systems designers to contribute to making climate change and other UN meetings more effective and collaborative. Mediation and conflict resolution can also be used to resolve conflicts that arise after agreements have been reached, and a culture of conflict resolution can be systematically reinforced throughout the community of nation states.
A great deal is riding on the success of these negotiations and the world’s most experienced conflict resolution professionals, if asked, would be honored and pleased to work together to create a more thoughtful and acceptable set of recommendations for action. Thus, there is little to lose and much to gain from asking for their help, analyzing new approaches, and beginning to experiment with them.
This does not mean it will be easy to move away from existing processes or alter methods that are familiar and understood, even when they prove in practice to be ineffective, inefficient, and time-consuming. But mediators and conflict resolvers have faced similar difficulties before, and with the right approach, have experience convincing conflicted parties to try new ways of achieving their goals and designing more successful agreements. What Needs to Be Done
Our ability to act in harmony with ecological limits is also reduced by our dependence for social status on luxuries and material possessions, our unrelenting economic expansion and competitive pursuit of profits, and our division into hostile, un-democratic nation-states, adversarial political parties and factions, and intolerant religious orthodoxies. Each of these sources of chronic conflict reduces our ability to think and act globally.
A revealing report by an official British commission on global warming chaired by Sir Nicholas Stern reported that climate change “is the greatest and widest-ranging market failure ever seen.” And former head of the U.S. Fish and Wildlife Service, Mollie Beattie, wrote, “In the long term, the economy and the environment are the same thing. If it’s unenvironmental, it is uneconomical. That is the rule of nature.”
Still, the U.S., China, and other governments continue to act in isolation, using aggressive and hostile bargaining techniques, competitive market principles, power diplomacy, and threats of economic sanction or military force to achieve their goals, all of which increase resistance and reduce the likelihood of solving environmental problems.
If we are to solve environmental problems internationally and sustainably over a period of decades, if not centuries, it is becoming increasingly clear that we will not be able to do so without helping people in less developed countries improve the quality of their lives, or enforce the changes we want by military force or coercive adversarial negotiations. Instead, we will require honest communication, egalitarian financing, genuine collaboration, democratic decision-making, and a massive infusion of interest-based processes, conflict resolution initiatives, and interest-based interventions on all levels.
As a result, we will not be able to require problem-solving methods that allow the wealthiest countries to predetermine outcomes and processes in advance, or that pursue selfish economic policies, or that stack the deck in favor of wealthy nations that are already technologically advanced. If we do, others will dig in, drag their feet, and change efforts will falter. Instead, we require a collaborative attitude that encourages participatory problem solving, greater use of consensus, and a shift from relying on power or rights to trying to satisfy everyone’s interests.
Over the last several decades, we have developed a powerful, complex set of methods and techniques that enhance collaboration and conflict resolution. These have proven highly successful, even with committed adversaries. While our skills have improved substantially, we have yet to fully acknowledge the need to adapt them to reducing environmental conflicts, or assuaging the chronic social, economic, and political hostilities that fuel them; or the need to implement them globally in a large-scale, organized, and coherent way.
At the moment, we are not even close to being able to respond sensibly or successfully to global disasters, let alone accept responsibility for solving the far more arduous problem of becoming ecologically sustainable and halting global warming in the long run. What is worse, the skills we need to leverage these changes are widely regarded as optional, too expensive, “touchy-feely,” and threatening to the social, economic, and political status quo. How, then, do we overcome these obstacles? Saving All Sentient Beings
There is an ancient Buddhist command that directs each of us to personally save all sentient or conscious beings. I have always thought this meant that no matter how difficult or seemingly impossible the task, it is important to extend compassion to others, focus on what blocks our growth and commitment, be mindful of our impact on others, and dismantle the pessimistic attitude that assumes it can’t be done.
Changing times, however, require fresh interpretations, and I now believe this command needs to be taken quite literally. I believe it is uniquely the task of this generation to harness the power of conflict resolution and associated techniques and contribute to actually saving as many sentient beings as possible, principally by bringing conflict resolution to bear on environmental problems, building preventative global systems, and working to transform and transcend conflicts at their internal and external sources.
There is a famous story about two people walking along a beach that is strewn with thousands of dying starfish washed up from a storm. As one of them began tossing the starfish back into the ocean, the other remarked, “What difference can that make?” The first person answered, “It made a difference to that one,” and they both began throwing them back. More deeply, the Dalai Lama wrote, “’We’ and ‘they’ no longer exist. This planet is just us. The destruction of one area is the destruction of yourself. That is the new reality.”
Just as our personal development reaches a limit in our capacity for affection and compassion, which is revealed in our external relationships with those who differ from us, our ability to make heartfelt connections with others rests on our internal capacity for affection and compassion. We cannot save ourselves without saving the world, or the world without saving ourselves.
In this way, the original paradoxical meaning of the command endures. In order to save others and ourselves, we need to become more aware of the environment and the impact we are personally having on it. This leads to the profound realization that we and the environment are not one. We will only finally succeed in dismantling selfishness, apathy, prejudice, greed, and brutality both by becoming aware of their sources internally within ourselves, and by redesigning the social, economic, and political systems that sustain them, transforming and transcending them in each of their locations.
As science and technology revolutionize our understanding of natural phenomena, they exponentially expand our capacity to manipulate and change the world. But our compassion, open-heartedness, and wisdom have not grown at the same pace. And in the past, when science has outstripped wisdom, we have discovered that a lot of knowledge and very little heart can be an extremely dangerous thing. The Way Forward
So how do we help save the planet? I believe we start by educating ourselves regarding global problems and accepting responsibility for improving them, including ourselves. Next, we realize that neither we nor any group or nation can succeed in isolation, and that the depth, seriousness, and reach of our problems require international collaboration. Finally, we recognize that our capacity for collaboration will remain limited in the absence of a:
Profound appreciation for the value and importance of diversity as a basis for unity;
Strategic insight into the chronic sources of social, economic, and political conflict;
Willingness to apply advanced communication, negotiation, and conflict resolution skills to the ways we interact socially, economically, and politically;
Concerted efforts to develop more skillful approaches to resolving conflicts before they result in intolerable, irreversible damage;
Readiness to redesign our social, economic, and political institutions and practices from a conflict resolution perspective.
It is possible that we will not succeed. But are these not worthwhile goals in any event? Might they not lead to significant improvements in the quality of our communications and relationships, regardless of their eventual outcome? And do not our very lives, and those of our environmentally inseparable cousins among other species increasingly depend on our doing so?
As the brilliant anthropologist Margaret Mead presciently wrote, “We are continually faced with great opportunities which are brilliantly disguised as unsolvable problems.” The unsolvable problems we now face offer immense opportunities for improving our condition and rethinking our social, economic, political, and ecological relationships. Doing so will develop our capacity to prevent, resolve, transform, and transcend conflicts at their chronic sources, and allow us to see that the solutions to our problems are already imaginable and being lived every day.
As historian Howard Zinn wrote:
“We don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.”
Mostly what is lacking is our realization that we can indeed make a difference. The world is waiting. As the surrealist artist Andre Breton wrote, “What are we waiting for? A woman? Two trees? Three flags? Nothing. What are we waiting for?” [Portions of this chapter were excerpted from Conflict Revolution.]
Have you ever attempted to calm down an emotional person? Our natural inclination is to deny the emotional content of what the speaker is saying by using logic and/or facts such as, “There is no reason to get upset”, “Calm down”, “You are over-reacting”, “You have misunderstood”, “Maybe it is because….”; “Don’t be so sensitive”, “Let’s look at the facts…”, “If you really think about it….”, et cetera. (Micro-Interventions in Mediation, by Douglas E. Noll at pp. 15-23 (2014))
In reality, what we are doing is making the situation worse. We are, in essence, invalidating and denying the emotional content of the statements and the feelings of the speaker; and the more we invalidate, the more emotional the speaker will become. (Our natural inclination is to become more stubborn or obstinate in the face of adversity or a “NO!”) (Id.)
I learned this “simple” lesson at a recent training session with Douglas E. Noll who explains that the best way to deal with emotional people is by using “Micro-Interventions”. He urges that rather than listening to the words of the speaker, to listen to the emotional content and simply respond to the statement by labeling the emotion. For example,
Speaker: It would stink to have to lose my house, but no way do I want to have to pay for it while she’s living in it with her boyfriend.
Response: You are angry, frustrated, and sad. You feel betrayed and disrespected. You feel grief and abandonment.
Speaker: It would be so hard to settle with all of my debt hanging over me.
Response: You are anxious and fearful. You are confused and uncertain. You feel alone and unsupported. You feel abandoned.
(Micro-Interventions in Mediation, by Douglas E. Noll at p. 23 (2014))
More often than not, the primary emotion being expressed is anger. This may often be followed by frustration, anxiety, fear and disgust, sadness and grief and finally, abandonment. (Id.)
Initially, it will feel quite awkward, if not uncomfortable, to respond by labeling the emotion and sometimes, you will label the emotion incorrectly (Mr. Noll cautions not to use “I” statements but rather always start with “you.’) But, as Mr. Noll, points out, identifying the wrong emotion is quite alright as the speaker will be quick to correct you by saying what she is really feeling. When you respond back with that emotion (and perhaps one or two others), you will know that you have correctly assessed the situation when the speaker responds with an unconscious head nod, or a “yes” , and a slight lowering or bowing of the shoulders indicating relief/release. When this happens, the speaker will suddenly feel as if you have “really” heard what she has been saying and understand her and will calm down. (Id. at 31.)
At this point, you can discuss the issue on a more “rational” or “factual” basis, looking for options and ways to resolve the issue.
According to Mr. Noll, this micro-intervention should take no more than 90 seconds and can be very subtle. But, it will get the speaker to calm down, and become “rational” once again.
Since returning from the training, I have tried it a few times and …it works! So, give it a try… you will be surprised at the results!
….. Just something to think about.
The Case For Formally Professionalizing Court-Connected And Litigated-Case Mediation
by Jack R. Goetz, Esq., Ph.D., Jennifer Kalfsbeek, Ph.D.
It is not illegal for someone in California to raise a sign or to place an ad claiming to be a mediator, charge fees for mediation, and engage in this largely unregulated process intending to serve the public by helping parties resolve disputes. As the ninth largest global economy, California is a sizeable and an illustrative example of how the mediation field operates within the United States as well as where the field may be moving as the occupation evolves. (1) Young notes, “most mediators in most states . . . can hang up a shingle without meeting any licensing or training requirements or agreeing to be bound by any ethical guidelines. Most mediators are beyond any state-sponsored sanctioning process.”(2) Jarrett writes that the field of mediation is borne out of the counterculture movements of the 1960’s and 1970’s, a rejection of a formalistic, legal system that resolves disagreements in a prescribed manner. (3) Thus, the field continues to have an occupational preference for no regulation, with perhaps a sentiment that if mediator regulation became the norm, mediation would lose its creative spirit.(4) For this reason, the mediation community in the United States is debating the need to formally professionalize mediation.
This article posits that the field of mediation can better serve the public by developing a system of public accountability that would elevate itself to a formal, professional status. What’s more, the proverbial train may have already left the station in disputes that are resolved in a public forum: court-connected and litigated cases. Client expectations and the statutes protecting confidentiality in mediation anticipate professionals, and the mediation practice therein has rapidly evolved towards professionalization. These public-forum litigated case mediators are often regulated under local court or state rules, which also require some mediation training, thus putting them ahead of the rest of the field of mediation with regard to professionalization. However, the final steps that are required by other professions, with the inclusion of a common ethical code and a qualifying exam, are still not standard for mediators. Without establishing some of the fundamental elements that are at the core of professions, including agreement on what constitutes mediator education or training and willingness of the field to keep out other would-be practitioners who do not meet a common standard, mediation has failed to live up to the standard of the other professions and therefore undercuts its value for the community. Ultimately, in the absence of establishing a professional standard, the fundamental judgment and enforcement of what constitutes a “mediator” in public forum litigated cases is deferred to local courts, providing unevenness in application. For example, in Los Angeles, one of the largest counties in the world, budget pressures ultimately led to the demise of the court-connected mediation panel (5) reputably the largest court-connected panel in the United States.
This article attempts to answer the long debated issue about whether mediation is a profession, but leaves plenty for future research. It does not attempt to answer the political question regarding which governmental or non-governmental body should professionalize mediators. It does not attempt to define, other than by demonstrating what has been required to date in mediation and other occupations, what should be the ultimate standard for mediation professionalization. This article will however, look at the sociological view of professions, review the current discussion and treatment of the mediation field, and analyze what it might take to move mediation as a whole, and then court-connected and litigated-case mediation, to profession status. Finally, with special focus on court-connected and litigated-case mediation, this article will conclude by reviewing some of benefits and detriments of converting an occupation to one that is a recognized profession.
Defining Mediation and Court-Connected and Litigated-Case Types
Mediation is a process in which a third party, called a “neutral,” assists disputants in creating their own solution to a conflict.(6) Mediators do not make rulings in matters, but they facilitate problem solving between disputants. While some mediators are also attorneys, many are not. Additionally, mediation is sometimes confused with arbitration; however, arbitration involves a hearing in which the arbitrator is charged with hearing evidence and making a court-like ruling. Mediators utilize the principle of party self-determination, facilitating negotiations between the parties until an agreed upon final settlement is reached. If the mediator is involved in a dispute that has already been filed as a lawsuit, it is referred to as litigated-case mediation; if the mediator receives the mediation assignment under the auspices of a court process or the court has made the mediator’s name available to the parties, it is considered a court-connected case. As noted previously, the mediation community in California and beyond is currently debating the need to formally professionalize the practice of mediation. Behaving “Professionally” versus Being a Recognized Professional
It is common for members of occupations to ask themselves if they should become a formalized “profession.” This occupationally defining question can lead to complex discussions among colleagues. A person behaving in a manner that is respectful and appropriate among occupational peers is often said to be acting professionally. Yet not all occupations are “professions.” Sociologist Craig McEwan notes on mediator professionalism that the “effort to offer professionalism without professionalization suggests multiple meanings of these concepts.”(7) Clearly, the notion of “profession” is widely used yet not commonly understood.
Pavalko’s seminal text notes that defining “profession” is complex because we use the word “profession” in varying ways. Pavalko notes three ways in which “profession” is commonly understood: 1) profession as full-time activity, 2) profession as competence, and 3) the professions.(8) The former two notions refer to common colloquial ways in which people refer to being professional; the latter refers to what it means to be a formally recognized profession, with the rights and restrictions attached to this status. Mediation’s occupational status is linked to the understanding of these distinctions.
One is oftentimes considered “professional,” or engaging in a “profession,” when referring to their “full-time performance of an activity for pay in contrast to engaging in the activity on a part-time basis, as a recreational activity, or without pay.”(9) An athlete or actor who moves from amateur status to working for pay will oftentimes separate themselves from amateurs by referring to themselves as “professional athletes” and “professional actors.”(10) The term “professional,” in these instances, denotes making a living at doing the specified activity. It is also the case that one may wish to convey their specialized skill in an area, or their competence and proficiency in performing a specific set of tasks, by stating that they are a “professional.” This is done to instill confidence in consumers. When someone publicizes that they are a professional carpenter, they are conveying that they are highly skilled at the carpentry trade; “businesses that advertise in this way are attempting to capitalize on popular understandings of the meaning of the term ‘professional’ and turn them to their own commercial advantage.”(11)
These colloquial notions of being “professional” blur the distinction between occupations in which people can earn a living and those that have earned the status that is derived from being part of a formalized profession. Occupations that are formalized “professions” possess characteristics that transcend the fact that one can earn a living in the performance of that occupation. In meeting these additional standards, members of the professions enjoy privileges and the status reserved for occupations that have set qualifications; most importantly, the public they serve can trust that their providers meet a set of standards that are established and overseen by the experts in that field.
The Professions: A Detailed Explanation
In order to be a formally recognized profession, an occupation must possess five sociologically defining characteristics of professions as listed below and described in the sections to follow.(12) (13) (14) (15)
Service to the Public
Code of Ethics
This article will look at a number of professions that are recognized in the United States and throughout the globe, from physicians to social workers, all of which meet this sociologically defining test. Many occupational groups meet some of the characteristics of professions, and because of the definitional blurring that occurs between the word “professional” or acting “professionally” in contrast to being a member of a profession, it may seem that more occupations are professions than what is the case. Mediation is not a Profession Yet
Detailed in the sections to follow is an explanation of each of the characteristics of the sociological definition for professions and a perspective as to whether mediation meets the characteristic. Table 1 provides a summary of these sections by assessing six established professions, the general field of mediation, and court-connected mediation, against the five criteria for professions. The test reveals that mediation as a whole does not possess all of the characteristics of a profession. However, court-connected mediation is closer to meeting the characteristics and could lead the field into professionalization by setting out to fully meet the final characteristics.
Service to the public: Mediation meets this criterion.
Most professionals become practitioners because they wish to serve society. Others are members of professions that, at least in part, are considered necessary for society’s greater good. Therefore, service to the public is one of the more distinct characteristics of professional practitioners, like nurses and teachers who “have concern for others that go beyond their self-interest of personal comfort.”(16) Most professional work groups, such as physicians, social workers, and psychologists, seek to underscore the “ideal of service” to society as their primary objective.(17)
Service to the public is critical to professions because “the work of the professions is seen as strongly related to the realization of [societal] values.”(18) Values are widely held notions regarding what is good or bad, right or wrong, desirable or undesirable within a society.(19) Values provide us with the principles and the subjective lens from which we evaluate behaviors, events, objects, etc.(20) Common values held in the United States include: justice, liberty, personal safety and security, and the belief that individuals should have access to lifelong health and happiness.
Conversely, some occupational groups have become professions because their formal professional status requires that practitioners engage in their work with an eye towards serving the public. This group of professionals, including public accountants and architects, may not have chosen their occupation because they were compelled to serve the greater good, but they cannot legitimately engage in their fields unless they learn to abide by professional standards that require them to uphold accountability to the public and public safety. Mediation meets the criterion of service to the public because it seeks to facilitate an agreement between consenting parties in disagreement. Mediation supports the values of peace, justice and cooperation. The societal benefits of this value-laden action include reducing litigation costs for private parties and the courts, fostering peaceful communities, and providing service to individuals and entities that otherwise might not have access to these services. Code of ethics: Mediation does not currently meet this criterion.
Codes of ethics are sanctioned norms, or expected behaviors and practices that are articulated by regulating bodies. While some occupations and work groups possess codes of ethics, all professions possess a code of ethics by which all members of the profession are required to obey.(21) Because professions self-regulate, professionals can be held accountable for their actions and required to adherence to their professional code of ethics or risk losing their professional status. While all professions possess a code of ethics, professionals are not necessarily more honorable than non-professionals. However, because professional regulating bodies oversee their members, and sanction their codes, professions can assure the public that they will uphold their codes and, if a professional member breaks a code, their actions are punishable. Possessing a code of ethics also reinforces the “service to the public” value of professions as it serves as a promise of responsibility to society.(22)
Many organizations have developed codes of ethics for mediators (Model Standards of Conduct for Mediators, American Bar Association, 2005; International Mediation Institute, 2013; California Dispute Resolution Council, 2013). Court-connected panels have regulatory systems that often include a code of ethics. Jarrett writes, “a review of a sample of thirty mediator ethics codes from prominent mediator organizations revealed that these codes have almost all reproduced the neutrality and/or impartiality ethics in their definition of mediation.”(23) Despite the proliferation of, and commonalities between, the various codes, there is no universal regulatory system that exists to enforce them for the mediation field except on a fluctuating region-by-region basis. Should mediation self-regulate, those regulations would include the creation and enforcement of a common code of ethics. Self-regulation: court-connected panels are close to meeting this criterion, mediation overall lacks self-regulation.
An occupational group is not a profession without self-regulation, in part because, without regulation, an occupational group cannot fully, and ethically, serve the public. “All professions have licensing, accreditation, and/or regulatory associations that set professional standards and that require members to adhere to a code of ethics as a form of public accountancy.”(24) The argument that mediation should not be regulated is therefore an argument that mediation is not a profession.
Three facets of professions underscore the necessary inclusion of self-regulation as a key characteristic of all professions: autonomy of practice; a qualifying examination; and a professional oversight body. Some occupations include some of these “self-regulation” facets, which can lead people to believe that an occupational group is fully self-regulating. Recognized “professions” however meet all three facets of self-regulation.
First, a distinctive feature of professional work is that professionals typically engage in their work independent of direct supervision. A “professional” is expected to rely on their own judgment in selecting the correct approach to a task or the best technique to use when solving a problem.(25) Professional groups possess “the freedom and power to regulate their own work behavior and working conditions.”(26) With this privilege of autonomy comes the responsibility to self-regulate. To act autonomously, without regulatory oversight, may eventually lead to an abuse of power and possible discrediting of an occupation altogether. Mediators act autonomously when they work with clients. According to McEwan and Freidson, members of professions “control their own work” on a day-to-day working basis as well as on a professional-level scale.(27) (28) Coben chronicles how mediators rely on their best judgment or self-imposed restraint to honor the mediation principle of self-determination as they influence the parties towards settlement.(29) Therefore, mediation meets the characteristic of autonomy. Herein lies the dilemma; mediators act autonomously, yet if they abuse this power, there are no common, formal remedies in place for wronged parties because mediation is not yet fully regulated. In fact, Young chronicles the inability of disputants to successfully sue mediators, even in situations in which allegedly substandard mediation practices are utilized that injure disputants.(30)
Second, all professions possess a qualifying examination that certifies or licenses one as a credentialed practitioner. Common nomenclature on this topic can be confusing. Some occupational groups such as physicians and dentists require their members to be “certified” by passing a certification examination that is overseen by their private, professional association in addition to being licensed by their states to practice.(31) Others, such as nurses and social workers, expect their practitioners to become “licensed” by passing a state-sanctioned examination that qualifies them to practice in a state.(32) (33) Other groups still, including teachers and attorneys, speak of an overarching examination, or credentialing test, which sets the bar for entry to become a practicing member of the profession before they obtain a state license to practice.(34) (35)
A professional may be certified by their professional body and licensed by their state to practice, or they may pass a licensing exam in their state which qualifies them to practice. Therefore, some professions require certification and licensing and others may require just private certification or state licensure. The key distinction between licensing and certification is that “licensing is a mandatory credentialing process established by a state government board. Certification is a voluntary credentialing process by a non-governmental, private professional association. In some cases, professional certification is a requirement for employment, even when a state license is not necessary.”(36) Regardless of the terminology used, or the type of qualification that is applied to the profession (a state-mandated license or not), a qualifying exam of some type – like the bar examination for attorneys, the Medical Board Certification Examination for physicians and dentists, and the Social Work Licensing Exam – is a required facet of self-regulation for all recognized professions. A license, certification, or other qualifying examination serves as a screening device. The objective of these qualifying examinations is to protect the interests of the public by assuring that practitioners hold an agreed-upon level of knowledge and skill, and by filtering out those with substandard levels of knowledge and skill. In its February, 1997 report on teaching professionalization, the National Center for Educational Statistics states: “Professions require credentials. That is, nearly all professions require completion of an officially sanctioned or accredited training program and passage of examinations in order to obtain certification, a credential or a licensure to practice.”(37) However, the field of mediation does not yet require its practitioners to pass a qualifying examination to work as “mediators.”
The third and final facet of self-regulation is the existence of a profession-specific oversight body. To pass a qualifying exam alone only establishes that one can work as a member of the occupation, and it sets a bar-for-entry to practice; however, it does not assure compliance to any occupational codes of practice or a common code of ethics. To be fully self-regulated, an occupation must also include a governing or oversight body that assures adherence to the codes and approved practices of the work group. To regulate is to serve the greater good of the public, because through the process of self-regulation, a common code of ethics is adopted, a formal bar-for-entry is established, and an oversight body is created to monitor the actions of the professionals and to enforce adherence to the professional codes. Typically, the last step in becoming a formalized profession is self-regulation, because regulation requires the establishment of a qualifying exam, adoption of a common code of ethics, adoption of a professional oversight body of peer professionals, and lastly, the establishment of a standard for specialized education – the fourth characteristic of professions. As of the time of this writing, no recognized oversight body that monitors mediators existed. However, courts often maintain a complaint process;(38) therefore, court mediation panels are closer to meeting the definition of a profession under the self-regulation standard than the rest of mediation. Specialized education: mediation as a whole does not meet this criterion; court-connected mediation panels may meet this criterion.
Because members of professions are expected to make autonomous judgments, pass a qualifying examination, and adopt and embody a professional code of ethics, professionals are characterized by the successful attainment of a specialized education. While it is recognized that all occupational work involves the acquisition of skills and knowledge, professional work requires: 1) education that focuses on an abstract and complex knowledge-base, 2) practical training, and 3) continuing education throughout one’s participation as a professional. In order to accomplish the specialized educational goals of a profession, professions today require members to attain a degree in higher education.
Rossides writes that professions are largely defined by the specific academic education required for competence.(39) Specialized training in higher education is one of the key qualifiers for professions.(40) Medical doctors, licensed social workers, and attorneys need graduate level degrees to meet the educational standards of their professions. Accountants and teachers need baccalaureate degrees to qualify. Nurses need a minimum of an associate’s degree. Mediation, because it is largely unregulated in the United States, does not have a common degree or specified education level that is expected in the field, with the possible exception of some court-connected panels. However, the variation in court-connected panels is extreme. Some courts in Minnesota, Oregon, and Maine require no degree at all.(41) (42) (43) Some courts in California and Virginia require a bachelor’s degree.(44) (45) Others still, in Georgia and California, require a law degree.(46) (47) While the wisdom of requiring a law degree will be discussed in this article’s concluding remarks, the court-connected mediators who have earned a higher education degree are closer to meeting the professional norm for higher education attainment for professions.
According to Pavalko, “a profession is an occupation that has developed a complex knowledge-base that serves as the basis of its members’ claim to special expertise.”(48) Pavalko also points out that with professional education, emphasis is placed on “mastering the ability to manipulate ideas, symbols, concepts and principles rather than things and physical objects.”(49) The abstract and complex core knowledge-base that could support mediation as a profession is written into the minimum qualification standards for some state statutes and court-connected panels.
California, for example, has codified this core knowledge in the Dispute Resolution Programs Act.(50) DRPA authorizes public funding for dispute resolution conducted under certain conditions, including that mediators who are conducting a mediation that qualifies for funding meet a minimum of 25 hours of classroom training, including at least 10 hours of lecture and discussion on specific topics germane to mediation theory, and 10 hours of mediation role plays using simulated disputes. The abstract and complex core knowledge specified by that statute includes, communication skills and techniques, building trust, gathering facts, framing issues, empowerment tactics, effective listening and clarification skills, problem identification, identifying options, building consensus, as well as being able to manage the mediation process through settlement. DRPA, however, does not require its mediators to have a higher education degree.
While individual variances in hours devoted to acquiring and maintaining the mediation-specific abstract and complex knowledge base exist, the topics that are at the center of the DRPA statute also resonate with court-connected panel requirements elsewhere. Raines, Hedeen and Barton recently recommended a universal core training requirement of 24 hours for court-connected mediations that included training on the mediation process and fundamental skills, including listening, questioning, framing skills, and ethical practice, with additional hours depending upon the area and setting of the mediation practice.(51) Previously cited, Oregon and Minnesota are other examples of mediator training models largely based on similar topics enumerated by DRPA and the Raines, Hedeen and Barton study.
Professions also typically expect their members to engage in practical training and continuing education. Proof of practice by way of residency training, clinical hours, or practical training hours is required of most professions including physicians, social workers, nurses, and teachers.(52) (53) (54) (55) Lastly, all formal professions explored in this article require continuing education while a practitioner remains a member of their profession.
While this article was not written to be a comprehensive national or state-specific look at what the courts have required in terms of specialized education and training (see Mediation Training International Institute, 2013 for a state by state listing),(56) the trend with those who have looked at the issue of mediating the court-connected or litigated-case is to push the field towards professionalization in this category. Courts often define a core complex knowledge-base, and may require either an undergraduate or law degree in addition to 24-60 hours of mediation-specific training. Additionally, courts often seek mediator commitment to follow court rules; to require some prior mediation experience; to require some engagement in continued mediator training; and attempt to regulate mediators against whom complaints have been filed by litigants. Authority: litigated-case and court-connected mediators are assumed to meet this criterion; mediation in general does not meet the criterion.
Because professionals possess specialized knowledge and skills that are recognized by the public to be of value, professions exist to support the greater good of a society. Combined with their power to self-regulate, professionals possess significant authority in society(57) If an occupational group possesses the first four characteristics of a profession, the final yet critically impacting characteristic – authority – is inherent. Power can be garnered through legitimate and illegitimate means. One can gain power over others because members of the community fear them, or believe that they must obey a person because that person or his/her perceived position has persuaded them to do so. At some point in the pre-professional history of professions, anyone in society could have held themselves out to be a “healer,” “solicitor,” or “teacher.” It is often at this point in the life cycle of a “profession” when occupational groups determine if there is a need to become a profession, for the sake of the greater good of the public. Authority is power that is accepted to be legitimate;(58) professionals possess the power of authority.
Non-professions that are not self-regulated do not possess the same legitimate authority in society. Without the authority that is bestowed upon professionals, an occupational work group cannot be sure that all members of the group are at least required to act in accordance within their professional code of ethics. Therefore, mediators currently possess varying degree Authority: litigated-case and court-connected mediators are assumed to meet this criterion; mediation in general does not meet the criterion of power and do not have the authority that normally characterizes a profession. The public benefits greatly from the legitimate authority provided by the status of professional occupations.
Mediation as an occupation, and court-connected mediation when considered a separate occupation, does not stack-up favorably against recognized professions on the basis of the sociological criteria established. Table 1 outlines six established professions that have been assessed based on the five characteristics of a profession including: physician, social worker, accountant, nurse, teacher, and attorney.(59) (60) (61) (62) (63) (64) The occupational field of mediation overall, and court-connected mediation, are also aligned with the professional characteristics. While the formally recognized professions fully meet the five characteristics of professions, mediation overall meets one of the characteristics, and court-connected mediation fully meets three of the characteristics and partially meets the other two characteristics of professions.
Table 1: Five Characteristics of Professions by Occupation/Profession
Service to the Public
Code of Ethics
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, PT
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, PT
Certified Public Accountant
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, no PT
Licensed Social Worker
Yes: COE Client- practitioner confidentiality
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, PT
Yes: COE Client- practitioner confidentiality
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, PT
Yes: COE Client- practitioner confidentiality
Yes: QE, OB, Autonomy is norm
Yes: HE, CE, no PT
No COE for mediators; some local codes of ethics.
Client- practitioner confidentiality is granted by some statutes
No: No QE, No OB, Autonomy is norm
No commonly required HE; requirements vary
No commonly required CE or PT; requirements vary
No: Level of perceived authority varies.
Mediator: Court- connected
Partial: Some court program statutes include COE.
Client- practitioner confidentiality is granted by some statutes
Partial: No QE, No common OB, Autonomy is norm
Partial: No commonly required HE; requirements vary
Yes: CE, PT
Yes: Work in courts assumes authority by public consumers
Note. CE = continuing education, COE = common code of ethics, HE = degree of higher education; may be a graduate or undergraduate degree. OB = oversight or regulating body, PT = practical or clinical training,
QE = qualifying exam; may be a licensure, certification, credentialing or Bar exam
Current Statutory Treatment and Discussion on Mediation as a Profession
Unfamiliarity with sociological standards clouds the discussion of mediation as a profession and contributes to the field’s indecisiveness on the topic. As noted at the beginning of the article, Young wrote that mediation is largely unregulated in the United States, a critical component of being a profession.(65) Yet, Young also chronicles national disagreement about whether mediation is considered a profession. Perhaps it should not be a surprise that there would be disagreement; individuals who hold themselves out to the public as mediators are from disparate backgrounds, including attorneys and psychologists, who already qualify as professionals based upon the five characteristics noted above.
Professions within the United States are created either on a state or national level. Using the California Business and Professions Code as an example, states generally regulate two types of occupations; those for which there is a perceived need to protect the public, and those occupations that are considered professions. Mediation’s lack of inclusion in that Code means that it is not in either category. Thus, amongst the occupations that are not professions but for which there is a perceived need to protect the public, the Code has regulations pertaining to funeral directors, re-possessors, and pest control operators. Levin notes the absence of complaints from consumer advocacy groups and the like in the field of mediation that would otherwise require state regulation.(66) Indeed, based upon mediation missing from this first type of occupation that is regulated under the Code, that may in fact be the case. However, pinning the regulation of an occupation primarily to the lack of public complaint ignores the second category of occupations regulated under that Code and other similar state codes: Professions. Accountants, doctors, attorneys, and social workers are among the professions for whom one can find a regulatory scheme under the Code; mediators are not among these. Evidentiary code confidentiality protections contemplate mediators as part of a profession.
Communications with mediators receive protection under the laws in most states as if they were members of a profession. The National Conference of Commissioners on Uniform State Laws, drafters of the Uniform Mediation Act [hereinafter UMA] that has been adopted in 11 states and is intended to be the main body of law governing mediators, remark on their website that “the UMA’s prime concern is keeping mediation communications confidential.”(67) The NCCUSL (2003, p.7,8) had previously noted that “virtually all state legislatures have recognized the necessity of protecting mediator confidentiality . . . justifications for mediator confidentiality resemble those supporting other communication privileges, such as the attorney-client privilege, the doctor-patient privilege, and various other counseling privileges.”(68)
Using California again as an example, the California Evidence Code sections §1115-1123(69) cloak what transpires in mediation with confidentiality. The CEC indicates that what is said in mediation cannot be used in litigation as evidence, and notes that other materials developed for the mediation are similarly protected. Callahan notes that, “while California’s confidentiality protections have been stated in the form of an evidence exclusion provision, California courts have construed this provision more like a privilege.”(70) However, with those occupations that enjoy confidentiality privileges conferred by the state and used by the drafters of the UMA to support mediation confidentiality, and with the other occupations engaged in rendering services in which confidential privileged communications take place under the CEC, such as an attorney or a doctor, the communication is one with a professional who is regulated, invariably licensed by the state and subject to license forfeiture for misuse of that license. Each professional has taken qualifying examinations in which knowledge of the ethics of the profession are tested. In stark contrast to those professions, mediators operate with the protection of the state statutes, the UMA, and the CEC without being licensed or tested on their knowledge of ethics or of any of the complex knowledge-base that forms the backbone of mediation practice.
Further complicating this issue is the fact that mediators are treated as if they are from a profession, which is the proverbial “elephant in the corner” concept of mediator manipulation. As part of customary practice, mediators manage the agenda and communications between the disputants and use the confidentiality protections so that neither party truly has full disclosure. Coben noted, “mediators themselves routinely and unabashedly engage in manipulation and deception to foster settlements, albeit under the rationale of fostering self-determination.”(71) Coben further states, “surely one must question if a settlement is ever truly self-determined when it is the product of manipulative tactics (no matter how well-intentioned).”(72) The NCCUSL (2003) justify the support for mediation confidentiality legislation nationwide and the UMA’s mediation confidentiality provision in that it promotes candor and encourages early resolution of disputes.(73)However, “blanket protection” for mediator confidentiality is not without its detractors; Deleissegues (2011),(74) citing Factor,(75) writes that “mediation confidentiality protects an incompetent mediator, prevents testimony regarding malpractice, and prevents third parties from learning vital information that might protect them.” While there are good and bad practitioners in every profession, mediation as a field has not yet earned the status of a profession that ordinarily justifies the public trust envisioned by the confidentiality protections.
The debate regarding whether or not mediation should pursue professionalization has been previously chronicled.(76) (77) (78) (79) (80) This article however, has a slightly narrower focus: Given the expectations of mediation practice in litigated-cases, which has evolved differently than the rest of the field of mediation, and the movement nationwide for courts to credential their panels, mediators should be uniting on a state or national level to justify the evidentiary code protections which contemplate mediators as professionals rather than requiring each local court to invest their scarce resources in re-creating standards for mediation panels that are largely undifferentiated. Forces are already pulling litigated-case and court-connected mediation towards professionalization, and continued non-professionalization of the field only serves to deprive those forums of the proper mechanisms for litigants to resolve their cases with all of the alternatives mediation can provide. Litigated-Case Mediation is Evolving towards Professionalization
Mediation, in the context of court-connected panels, has the shortest distance to travel to become professionalized. One could argue that invoking public accountability in the form of self-regulation, a common code of ethics, and agreed upon specialized education, combined with a qualifying examination, could position court-connected mediation with other professions. Since the distinction between qualifications for a mediation practitioner in court-connected panels, in contrast to mediation practitioners in other venues, appears to have evolved gradually, county by county, state by state; there is reason to believe that this distinction is not artificial.
Jarrett sees the growth of mediation directly tied to its corporate clientele who are seeking to reduce litigation costs of increasing conflict driven by economic activity and globalization. In this pre-litigation or litigation context, the formalized ethics and impartiality of mediation serve to legitimize it as an institutionalized conflict resolution mechanism. Therefore, in the court-connected or litigated-case environment, mediation has evolved from its counterculture roots in the mid-20th century to a very legalistic and formalistic approach. “In the future, a growing divide will continue to emerge between legal and non-legal.”(81)
Jarrett further suggests that this divide is related to the difference in practitioner approaches that are necessary to help the parties resolve conflict in a legal dispute. According to Jarrett, the pre-dominant mediation form in litigated-case mediation is evaluative. “This method is most effective when the parties can readily identify objective standards or law that have been breached and the appropriate agreed-upon compensation within a settlement zone. Mediator knowledge in substantive aspects of the dispute is essential for this approach so that the mediator can provide the parties with an authoritative evaluation.”(82)
Hedeen and Coy, while noting many of the connections between non-litigated-case mediation types, including what is referred to as “community mediation,” and litigated-case mediation, foreshadow the difficulty in making the entire mediation field meet the evolved standards often present in court-connected panels by noting, it has become clear that both the length and the quality of mediation trainings received by community mediators should be increased. The trick is to do this without abandoning the field’s historical reliance on ordinary citizens from all walks-of-life who volunteer their time and services and lay claim to no extraordinary training or academic degrees…The courts are understandably an administrative system that is deeply committed to credentialing. But this credentialing, which often takes the form of advanced academic degrees, may too easily disenfranchise a community’s volunteer mediators.(83)
Whether for sociological reasons driven by mediation clients, or the court’s comfort with the credentialing process, the continued pressure to professionalize the litigated-case or court-connected mediation is based upon a myriad of factors that include 1) the confidentiality protection provided by evidentiary codes that anticipate such professionalization, 2) the expectation of the users of mediation services in litigated-cases that may demand a more formal procedure than is utilized elsewhere within the mediation field, and 3) the need for public accountability to resolve disputes that ultimately have been filed in a public court system. Thus, it was no surprise that in California those factors may have been partially responsible for the introduction of a bill in the California Senate, SR 05-01-2012, a resolution on mediator regulation recently under consideration, provided in part that the State Bar would be responsible for certification and registration of mediators, and that the State Bar Court would be responsible for mediator discipline.(84)
Litigated-case or court-connected mediation could either professionalize by separating itself from the rest of the field of mediation, or alternatively, they could lead the field of mediation into professionalization. McEwen notes: “The impulse to establish a professional identity often arises as a way to resist or preclude alternative forms of control over the work of practitioners.”(85) As mediators consider whether they want to professionalize their field, measures such as the one introduced by the State Bar of California provide incentive to do so rather than face the alternative of another body regulating the field. Looking at other professions, there may be other reasons as well. Benefits and Detriments to Professionalization
A brief look at other professions and the factors that may have led to their professionalization compares favorably with the current environment in mediation. For instance, Stevens, in his seminal work on American law schools,(86) notes on page 92, that the American Bar Association formed in 1878 to “improve” the status of lawyers, many of whom were eking out a living on the economic fringe of the lower middle class. Bar examinations were instituted to raise the prestige and level of practice. Kendall asserts that the medical profession was formed from the frustrations of medical school graduates who were poor and frustrated by an overabundance of quasi-medical practitioners.(87) Del Bene noted that the nursing profession formed because “the lack of standardization of knowledge in educational preparation led to excessive stratification and indeterminism in nursing and the consequential inability of the members to generate a consensual identity.”(88)
In the context of discussing the potential professionalization of the field of mediation, Welsh and McAdoo note that “professions . . . are characterized by a distinct knowledge system that serves as a conceptual map binding together the members of the profession and framing the way in which they think about, reason through, and act upon problems.”(89) They suggest that mediators do not substantially agree that their work is based on a “systematic body of esoteric, abstract knowledge.” Thus, mediators cannot agree on the “approach, skills or ethics mediators should share.”
Critics of professionalizing mediation will sometimes cite reasons that do not necessarily apply in the litigated-case or court-connected mediation context, again begging the question of whether disputes that are in a public forum such as the court system ought to be separated from the rest of the mediation field in establishing professionalization. For example, one argument is that mediation is practiced so differently everywhere that establishing uniform standards is difficult if not impossible.
The differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.”(90)
Nevertheless, from the litigated-case or court-connected mediation arena is such that the evaluative form and the reliance on individual caucusing with each party is very similar from mediation to mediation. As it is, in most professions, the response to the differences in the practice is to establish certifications for different areas of practice rather than to abandon the thought of professionalization. Certifications are certainly not a new idea for the field, and Cole notes that mediation may lend itself easily to certifying mediators by the legal context in which the dispute arose.(91)
Another oft-cited argument is that professionalizing a field ultimately reduces services to the poor because the cost of service typically rises.92 Service to the disenfranchised is a complex and difficult issue, and it cannot be properly analyzed in the current climate in which those mediation services are not mandated or regulated. In fact, this concern for the disenfranchised could be an argument for regulation, as those who are the most vulnerable in society may be the most likely to be harmed via the current practice of unregulated mediation. Social work, which meets all five characteristics of a profession, is fundamentally rooted in the profession’s concern for proper and affordable care for the most vulnerable members of our society.
In many professions, the response to providing services to all segments of society is often in the form of expecting pro bono work of professionals and requiring internships of new entrants, often through universities that serve to offer professional services to the community at little or no cost. In addition, using California as a point of reference, university mediation programs can often be found mediating disputes for self-represented litigants in courthouses handling small claims or restraining order matters. California has already codified the use of public resources to offer mediation services to those without means through its DRPA (Dispute Resolutions Program Act, 2013).(93)
Finally, some commentators believe that mediation is too young to seek the norming process that accompanies professionalization. Doing so in mediation’s infancy may curtail its creativity as a field.(94) This argument again serves to differentiate the litigated-case or court- connected mediation from the rest of the field because a norming process has already taken place in that context.
Los Angeles County: A Casualty of the Pitfalls of Non-Professionalization
The pitfalls of not professionalizing litigated-case mediation are largely illustrated by recent events in Los Angeles County. Claiming budget shortfalls, the Los Angeles Superior Court announced the dissolution of its alternative dispute resolution [hereinafter ADR] services. See press release of March 6, 2013.(95) With the demise of the LASC panels, concerns were renewed about case management within the county given that the LASC ADR department was the largest of its kind in the country. With the elimination of the LASC ADR department, the Court, as a public agency, has no alternative to which it can refer parties who desire to resolve their public disputes. In contrast to other professions, members of the public cannot find licensed or certified mediators who have passed the quality or certification standards set by the state or the industry, and select a mediator that is right for them, knowing they are in good standing with the field. Once again, while Los Angeles and California may serve as case study examples, they are emblematic of a nationwide occupational status for mediation that leaves it largely unregulated and thus void of public accountability.
Mediators who take the position that they do not want to be regulated are unavoidably taking the position that they do not want mediation to be a recognized profession. While that may serve those who identify with the counterculture roots of mediation, it inevitably deprives one of the primary users of mediation – the disputants in litigated-cases – a regulated resource upon which the public can rely. As the Los Angeles Superior Court has found with the dissolution of its mediator panels with no obvious replacement in sight, there is a need to professionalize the world of litigated-case or court-connected mediation. Without that professionalization, public resources will continue to be excessively spent on the duplicative process of replicating local panels with arguably indistinguishably different criteria in order to serve an already overburdened court system.
Proponents against professionalization may have an unintended negative impact on the field in the public eyes. The lack of an established common code of ethics that can be universally adopted, in addition to not requiring specialized education and training, separates mediation from other recognized professions that otherwise generate public recognition. It is not unusual for the authors to hear judicial officers in Los Angeles note that with the demise of the LASC mediation panels, they would just reach out to local lawyers and bar associations to mediate cases, virtually reinforcing the conundrum mediators face in changing a public perception that mediation is not a distinct and unique occupation.
The inability to establish a specialized education standard for court-connected or litigated-case mediation has also affected the ability of the non-attorney mediator to have equal access to litigated cases, both by rule and by mediator selection processes implicit to those cases. Perhaps the biggest divide between court panels nationwide is whether to require a degree in higher education, and if so, what degree to require; those that require a law degree have essentially limited the mediator pool to attorneys. Additionally, Goldfein and Robbennol posit that attorneys are the primary clients for litigated-case mediation services.(96) Without a clear mechanism to professionalize non-lawyer mediators, the most likely scenario in a non- professionalized environment would be for the lawyer-clients to choose other attorneys as mediators because, as Jarrett notes, “lawyers can credibly claim greater knowledge and skill over the substantive, procedural, and evaluative aspects of a dispute.”(97) The Alternative Dispute Resolution Section of the American Bar Association Task Force on Mediator Credentialing noted in their report that “Disputants benefit from the opportunity to select mediators with training and experience in fields other than law. Credentialing programs may place value on legal and other academic training, but should not bar non-lawyers from obtaining credentials on de jure or de facto basis.”(98) The report therefore rejects having a law degree as a required part of the specialized education, something again that some court-connected panels have imposed in the absence of mediators professionalizing and setting the standards themselves for the field.
Levin writes that critics of professionalization often cite the principle of self- determination, embodied in all proposed mediator ethical codes, and read it to require that
disputants have unencumbered free choices in selecting a mediator.(99) However, honoring that principle in conjunction with evidentiary code sections providing blanket confidentiality seems awkward at best, and perhaps at worst, misguided public policy. It would not be considered good public policy to extend the attorney-client privilege or physician-patient privilege to well- intended non-professionals who may try to help with legal or medical matters. Court-connected panels have already indicated their needs by the very similar standards that have been developed that resemble professionalization. Litigated-case mediation has evolved into a standardized practice based upon the public forum in which it operates and the expectations of the clientele. Now may be the time for those mediators to formally professionalize and meet the needs and the expectations of the public.
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49 Pavalko supra at 23.
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95 Los Angeles Superior Court Los Angeles Superior Court Eliminates Alternative Dispute Resolution Services, available at http://www.lasuperiorcourt.org/courtnews/Uploads/14201332216264013NRADRclosure.htm (last visited June 16, 2013) [Hereinafter LASC].
96 J. Goldfein and J. Robbennol, What if the Lawyers Have Their Way? An Empirical Assessment of Conflict Strategies and Attitudes toward Mediation Styles 22 OHIO ST. J. ON DISP. RESOL. 277 (2007).
97 Jarrett supra at 60.
98 Alternative Dispute Resolution Section of the American Bar Association, Final Report of the Task Force on Mediator Credentialing, available at http://www.americanbar.org/content/dam/aba/images/dispute_resolution/CredentialingTaskForce.pdf (last visited July 2, 2013).
As a franchise attorney, prior to my training in dispute resolution, I didn’t consider using mediation as an initial or primary resolution tool. I typically found the background necessary in franchising was lacking on the part of the mediator, which watered down their credibility and ability to discuss the nuances associated with the realities franchise professionals live day in and day out. The importance of the settlement came first, but the continued relationship of the parties was somewhat ignored, to the detriment of the ongoing relationship.
The franchise relationship has been likened to courtship in many articles, and rightfully so. The initial offer and sale, is like dating, getting to know all about the system and parties to the franchise opportunity. The franchise agreement is the start of the marriage, and the terms the guiding principles of the relationship. The end can be a natural expiration, or an early termination or divorce. Needless to say, disputes will arise between franchisees and franchisors, but the obligation to get past the conflict and back to business will always persist.
The long-term success of franchisors and franchisees is dependent upon a true symbiotic relationship. Many other forms of commercial ventures are transient, with parties being interchangeable and only responsible for their own actions. When a dispute arose, parties could easily move on. These transient relationships foster no sense of community or system, and in fact their actions inversely impact those similar businesses. Competitors may see success through the failure of another, and a negative impact on their operation when a competitor succeeds.
Franchising is markedly different; the success of an individual franchisee has a positive impact on fellow franchisees, and conversely, a negative impact when a franchisee fails or is in a heated dispute with their franchisor. This tethering to the system is why the resolution of conflict and relationship issues are critical for a franchise system to thrive. The franchisor and franchisee must survive the dispute, and the systems perception of how the parties navigated the dispute must strengthen their belief and commitment in a synergistic partnership.
A more proactive attempt at dispute resolution is important in maintaining the franchisor franchisee operational focus, including a resolution that protects the relationship and fosters the inherent dependency on each other and the system. My mediations allow the parties to air and resolve grievances in a controlled non-confrontational environment, guided by an experienced franchise mediation specialist. With my vast and varied experience in franchising, I am able to connect with the franchisor and franchisee and utilize my experience to assist the parties in crafting solutions not on their immediate radar. A successful resolution entails guiding the participants in reconciling their differences and relationship, to insure all the parties are poised for future success.
I have spent my entire professional career in franchising, and have honed my skills as a neutral to be very specific and tailored to the needs of the franchise attorney, parties and community. If I can be of any assistance, please do not hesitate to contact me.
If you would like a more in-depth review of my mediation philosophy and background, please feel free to give me call, or visit my website at franchiselegalsupport.com