Long ago and far away, I was one of the people who successfully advocated for the institutionalization of ADR in a state court system. But based on research conducted by Professor Bobbi McAdoo and others, I got pretty discouraged about what non-family civil, court-connected mediation had become—dominated by lawyers and a legal-and-litigation focus, characterized almost entirely by caucusing, marginalizing the role of the parties, not producing very creative outcomes. As far as I was able to tell, private non-family civil mediation was following a pretty similar path. In both instances, it seemed that mediation was adapting to meet the preferences and match the values of the sponsoring institutions and repeat players. I’ve been in a funk about this for quite a while.
But something may be happening, especially in the court-connected, agency-connected and private programs that are sufficiently stable, diversified and large to focus on what quality means to them and to do something about it. It’s not that these programs are adopting codes of ethics and enforcement mechanisms. They already have those. They’re doing something that goes deeper. They’re bringing mediators together to engage in reflective practice, to support each other. In the process, these programs also may be helping their mediators to develop their own sense of professional identity that is related to, but also uniquely separate from, the courts and non-mediator-lawyers. I’m thinking of the Federal District Court of the Northern District of California, for example, which conducts regular, facilitated brown-bag lunches with its mediators and JAMS, with mediators in particular practice areas who similarly teleconference or videoconference with each other on a regular basis. These programs and their mediators are developing, in Craig McEwen’s words, “communities of practice.” They also are enabling their mediators to develop a shared professional identity and role, thoughtfully improve their skills, and hone their community’s values. I can hope that their mediation sessions are more likely to reflect the special potential of the process.
But let’s return to the question of which programs are most likely to be able to afford to nurture such communities of practice. They need to be sufficiently stable—not constantly worried about their funding or judicial support. They need to be diversified—not reliant on a particular judge or a single large client for a large proportion of their cases or revenues. They need to be large enough to have a critical mass of mediators who also are sufficiently experienced. And they need to be sufficiently proactive and humble to seek out means to improve their services. I wonder—at this stage in the development of the mediation field, how many court-connected, agency-connected and private programs can meet these demanding criteria? And let’s not forget about the mediators. They need to be interested in identifying with such communities and have sufficient time and resources to participate.
There is hope here. Evolution does not stop. It continues.