Expanding the scope and impact of mediation by embracing the concept of “Appropriate Dispute Resolution” is essential to the ‘Holy Grail of Justice,’ which is universal support for a neutral-led intake and first step program for all conflict short of capital crimes. With thousands of jurisdictions and just as many disparate worldviews on how justice works, is this holy grail attainable? In a word-yes!
Of course, that time is not yet upon us. The roadblocks are substantial, and no list could hope to be exhaustive. Three are representative of the largest type of roadblocks so thatwe will start with those, and hopefully, a dialogue about the future of mediation shall ensue. The goal is a dialogueabout the substance and viability of universal mediation mandates and certifications across boundaries leading to equitable and accessible justice programs available to all humans regardless of demographics.
The biggest barrier is the contemporary financial barriers in place within the current systems of law globally. In most cases, actual access to legal equity is stated as a legitimate right; however, the legal systems are inexorably linked to economics. The link means those with sufficient socio-economic capacity shall always hold a stronger position than all others to wield the privilege wealth guarantees. Does this subvert the system? Unfortunately, the reality supports those with means, not from ‘gaming’ the system or doing anything illegal (in most cases), but because they can afford to give free rein to their legal representatives to pursue justice at will. Simply filing a motion in most courts has costs that block access to the pursuit of justice for most people globally. Attorneys utilize this tactic to draw down an opposition’s financial capacity to fight and win by default.
The socio-economic power imbalance may be addressedlegislatively by requiring all parties to entertain mediation as the primary step taken before any litigation
In individualistic societies, competition is expected, even admired. Attorneys are expected to be the gladiators of the legal arena, and being a bloodied loser is better than not engaging the other side. In collectivistic societies, mediation would be the boon that massages the crowd, giving everyone an opportunity to do what is best for the group. That assumes a perfect world of willing sacrifice for the common good; however, the real-world norm demonstrates individual pursuit of judicial redress trumps any alternate belief system. The individual pursuit normopens the door to the other two barriers to universal mediation.
The second barrier is the viewpoint of the legal profession. Mediation has the ‘process’ capacity to bypass or ignore centuries of legal precedent, allowing parties to pursue their interests over their rights. Adopting a mediation before litigation mandate would disrupt the venerable legal establishment. The institution of law, with universities and law schools taking the lead, has made a career in law a highly-sought prize globally. Passing the Bar is the key to an exclusive club where ‘members-only’ play. To be fair, most jurisdictions have entertained mediation as a necessary component of the legal field, but with severe limitations (in most cases). Where mediation gets equitable treatment, there are certifications and formal processes that attempt to ensure professional competency; but, to date, there has never been a substantial effort to make mediation a full profession in the eyes of the court or Bar. For example, some jurisdictions mandate mediators as “Certified legal document preparers” who must practice under the supervision of a practicing attorney, while other jurisdictions have no mandate at all for the practice of mediation. This uneven treatment of the profession taints the image and must be addressed by legislative mandate for a universal, validated certification process. The implemented mandate would serve to protect the public from harm, guarantee a level of competency that would have the capacity to lighten the caseload for most courts; and most importantly, it would create a venue where the currently underserved and unserved could seek redress for their conflict issues. What is missing from this dialogue is how to incentivize attorneys to let mediators get more involved at the front of the line. One discussion point: “What would be the path to collaborative exchange with attorneys in the mediation sphere of influence?”
The third barrier links to the first two. Lack of education for the masses on the benefits of mediation is a social barrier supported by those in power who stand to lose economically if the current system of law shifts substantially. Attorneys have called ADR an “alarming drop in revenue.” Billable hours would shrink if mediation suddenly gained support universally. Many attorneys have chosen to become ‘recovering ex-attorneys’ as they have become disenchanted by the real-world nature of uneven justice evidenced in the current system. These ex-attorneys were trapped between their desire to be of real service to clients and the economic reality that some cases, although emotionally linked to worthy causes, just will not pay for the lifestyle they seek. This barrier may prove to be the toughest one to overcome, primarily because change for the good of anything or anyone takes education first, then buy-in, followed by design elements and implementation.
Despite these three barriers, and myriad others only a protracted dialogue could explore, mediation should be on the rise globally, and is in many venues. The universal certification mandate should be explored, designed, and implemented as soon as possible to block any subversion of the necessary rigors the profession must embrace to gain “full professional status.” While researching how change is adopted, the following path was discerned, and it details a multi-generational pattern of shifting norms:
- Knowledgeable and competent practitioners project a social good.
- First adopters jump in once they perceive the social and economic benefits.
- Middle adopters hold onto familiar norms until the benefits visibly surface.
- Late adopters only drop the old ways once they feel left out, and climb aboard.
Step one for mediation will take at least a decade. The other three steps shall follow within two decades. The timeline may be evidenced by the diffusion rate effect projected by the contemporary shift in adopting digital platforms globally. In my case, it is too late to realize the full effect of a successful shift toward a universal ‘mediation first’ legal world. The best I can hope for is to be instrumental in driving that change for the social good, and I am dedicated and motivated toward that end. So, who wants to be part of that revolution? “The global pursui
Points to Ponder:
With courts being over-burdened, what is the best path to shrinking both time and costs for disputing parties (and the courts), and how do we gain access to a funnel from the courts to relieve their calendar woes?
What is the best path to legislative discussion on the real-world needs of access to justice for underserved and unserved people that mediation would be a potential boon to?
How do we get a forum with strong global players to entertain our initiatives in conjunction with actual decision-makers?
Where do we gain financial support for these mediation initiatives, and how do we avoid the inevitable question on the ethics of receiving that support?
Reach out. Answer the questions. Join the dialogue. There needs to be change!