Occasionally I’ll see a message on a list-serv that captures my attention, and that most recently occurred with a recent message sent by Hiro Aragaki (Loyola – LA). I asked if I could post it here, and he agreed. If you’re not familiar w/ Aragaki’s work, he’s quite good at viewing issues from a different vantage point, and this one is no different. ___________________________________________________________
The Age Myth in Mediation
Does one’s talent or ability to be a mediator improve with age? With legal experience? Recently, someone posted a variation of these questions on a listserve. The poster noted that “older” mediators are often accused of lacking some of the skills we expect of a good mediator: the physical stamina to sit through hours of negotiations; the intellectual nimbleness to take in different perspectives and identify creative solutions, and even something as basic as good hearing. The poster then argued that we should not assume from the outset that older mediators lack these hallmarks of a good mediator. Talent and ability, in other words, are the true issues.
I am largely in agreement with the poster. But in my view, the real problem is hardly that older mediators are being denied opportunities to mediate; instead, it is that younger mediators are systematically being overlooked. If age should not be a factor in the case of older mediators, so, too, should it not be used as a proxy for “inexperience” or lack of talent with regard to younger mediators. (I concede for purposes of this discussion that arbitration may be a different case.)
As a “younger” mediator who started mediating in his early thirties about a decade ago, I had to overcome a systematic, overt, and unapologetic age-related bias. The bias against younger mediators is so commonplace that one scarcely notices it. Think of all the open and notorious comments one hears about mediators needing a head of grey hair—many of which, sadly, were repeatedly expressed and tolerated during the ABA dispute resolution section meeting earlier this year. If the same biases were voiced against female mediators, mediators of color, or even against older mediators, we would be screaming “discrimination”—and rightly so. Why should it be any different for people who are passed over simply because of their youth?
The reality is that there are many exceedingly well-trained and competent younger mediators out there. I have taught and worked with many of them. This should scarcely come as a surprise: most other fields, too, are blessed with young, talented people. Think of the founders of companies like Google or Facebook, or child prodigies like Mozart or Midori. In mathematics, there is a saying that all the best theorems were produced by people under the age of 35; once you’re past that age, the game is over. Like most other things, mediation is a skill that can be learned. There is no reason to assume that younger people can’t learn the skill quicker and better than their older counterparts.
Here it is often retorted that life experience gives older mediators an advantage. But empirical studies consistently show that experience itself is less probative than how one learns from that experience. There are plenty of people out there who have a lot of experience with the same problem but who are stuck in the same unproductive ways of coping with it (think of that friend we all have who always seems to be getting in and out of troubled relationships). It’s also often said that mediation requires a kind of “wisdom” that can only be acquired through age. Wisdom is certainly helpful, but it is surely just as important in setting up the world’s most successful internet company or in creating exquisite music that stirs the soul. Moreover, the academic consensus is that mediation and conflict resolution are essentially skills that can be taught with or without wisdom. And if that’s not the case, we should seriously begin wondering why so many mediators and law professors are making a living teaching “wisdom” to others. Almost by definition, wisdom is not something that can be taught.
I don’t doubt that, generally speaking, people of a certain age can be expected to have more composure, maturity, etc. to deal with conflict situations than their younger counterparts. Generalizations are useful heuristics. But in the case of younger mediators, the generalization has ossified into an insurmountable barrier-to-entry. I fear that we as a profession are overlooking a vast pool of talented mediators who, if just given the chance, would more than prove their weight in gold.
Should this situation change? If so, what can be done to change it? I welcome your thoughts.