Neutral Corner: Mediation 25 years later — what’s coming in the next 25?

The Association of Attorney Mediators sponsored a program in Indianapolis on April 20, 2018, entitled “Race For Excellence: Fine Tune Your Mediation Engine and Rev Up Your Enthusiasm.” The program had more than 70 registrants from 19 states. Indianapolis lawyer-mediator John Trimble opened the program and was followed by Ross Stoddard of Irving, Texas, and by an experienced panel of mediators, lawyers and academics who discussed, in depth, current difficult issues in connection with the mediation process: topics such as implicit or unconscious bias, negotiation coaching, the use of brackets, neuro-scientific realities of decision-making, and ethical and diversity considerations.

The detailed discussions and deep dives into these complex mediation process issues exemplified the evolution of mediation since its emergence in the early 1990s. That evolution was further highlighted by Stoddard’s presentation. The Indiana ADR rules were effective on January 1, 1992. An article in the May 5, 1993, issue of The Indiana Lawyer described an ADR program scheduled for May 14, 1993. The 1993 seminar was entitled “Mediation in May” and used the Indianapolis 500 Mile Race as a background to introduce mediation to Indiana lawyers. Not only did the 1993 and the 2018 seminars have a 500-mile race theme in common, but Ross Stoddard was also a main presenter in the 1993 program. The 1993 article in The Indiana Lawyer noted: “Mr. Stoddard has conducted approximately 500 mediation sessions and has trained over 500 attorney mediators in Texas and other states.” In the 25 years since that first program, Ross has conducted over 4,500 additional mediations. These two mediation programs, 25 years apart, serendipitously highlighted the growth of the mediation process in Indiana and in all other states.

Global Pound Conference

The Indiana Lawyer article in 1993 also stated that: “[T]he multi-door courthouse programs were a concept first envisioned in 1976 by Harvard law school professor Frank E. A. Sander.” Professor Sander’s paper presented at the Pound Conference in St. Paul, Minnesota in 1976 described and discussed the potential for mediation and other ADR techniques and is considered by many to be the “big bang” of the ADR movement. Forty years after Professor Sanders’ paper, mediation and ADR organizations and stakeholders, interested in the continued viability and development of ADR, organized and sponsored an initiative entitled “The Global Pound Conference Series.” The Spring 2018 issue of the Dispute Resolution Magazine, published by the Section of Dispute Resolution of the ABA, was entitled “What we have learned from the Global Pound Conference,” and in a series of articles, authors described and discussed the 29 events and programs held in 24 countries and attended by over 24,000 people.

Growth and evolution

Both the recent Indianapolis mediation program and the Global Pound Conference Series reflect not only the growth and evolution of mediation but also current challenges and issues in the field. The dynamic of “big bang” to instant success, followed by serious examinations of the pluses and minuses of the resultant process, is not unlike the beginning, development, evolution and current state of the internet, and particularly electronic social media. In both the cyber world and the world of mediation, we are at a “now what?” point. The discussions, articles and programs involving mediation must now focus on discrete and complex issues such as those discussions in the recent Indianapolis program and The Global Pound Conference Series. The mediation market clearly seeks, to varying degrees, an evaluative approach or component in mediations, and this reality presents issues as to how mediators can preserve and insure party self-determination and avoid coercion while still conducting necessary BATNA and litigation outcome evaluations. The evolving role of the advocate in mediation, especially as it relates to joint sessions and other opportunities or occasions for interaction and advocacy with the other side, also needs to be explored, as does the striking lack of diversity in the community of mediators.

Now What?

Now, mediators, attorneys and stakeholders must move to the inevitable next steps and thoughtfully explore and examine how the mediation process might be changed, clarified or even merely tweaked so as to ensure its sustainability and effectiveness for the next 25 years. Perhaps an “Indiana Pound Conference” should be considered.•

__________

• John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. Opinions expressed are those of the author.