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Comment: Perspective *

*  Used by permission of the Author, Barry Simon and Copyright 2001 Barry Simon.

In response to an article I recently read, I thought of submitting the following letter to the California Dispute Resolution Council’s “News,” a quarterly update of what’s going on in California. But instead I have chosen to post this on the dispute resolution list server. I believe the issues discussed below affect all of us across the United States. And it would be interesting to learn if these same issues plague others throughout the world who are also on this list:

I have finished reading the Spring 2001 issue of the California Dispute Resolution Council (CDRC) “News.” In particular, I am feeling bemused sadness after reading the article entitled, “Legislators Tackle Arbitrator Ethics: More That 100 ADR Proposals Face CDRC Committee Analysis.” 100 ADR-related bills! According to the article, these bills “tackle complex issues such as arbitrator ethics, review of arbitration awards, new dispute resolution procedures for health care service plans, proposed restriction on pro tem judges, and prohibition of mandatory arbitration as a condition of employment.”

The article goes on to say that the leading bill “would require arbitrators to meet ‘minimum qualifications and comply with ethical standards established by the Legislature.’” Established by the legislature!! The article continues, “the bill does not specify what these qualifications or standards would be, how they would be enforced or what sanctions might be provided for those neutrals failing to meet the standards.” Now that’s comforting, isn’t it? I guess these ADR experts in the legislature will make it up as they go along...just exactly as legislatures around the country have been doing for years.

That’s the “bemused” part. Now for the “sadness” part.

For the past three years, I have been trying to establish a mediation practice. In preparation for launching my services, I took several advanced mediation trainings while honing my skills by volunteering for a community program and a VORP program. (I have issues about volunteering for a court program where the attorneys get paid, the judges get lightened work loads and $18 million in double benefits, the county saves $2 million per year, but the mediators must work for free. Of course, if I was a retired judge, I could make a financial killing.)

I have taken sessions on marketing and even spent a small fortune on a six month entrepreneurial workshop. I created a business plan, initiated a newsletter, had articles published in local newspapers (and even the internet on mediate.com), placed paid advertising in strategic publications, lunched, networked, attended chamber of commerce events and other community business meetings...you name it, I’ve tried it. I have been fortunate to attract some clients through several “gatekeepers” I wooed, but not enough to earn a living wage.

Every time I hear about a staff mediation job that would pay a living way AND allow me to actually mediate, I am blocked from applying for it because it requires either a degree in law or the therapeutic arts. And that requirement always comes from some law that was passed by the state legislature. Being a trained and experienced mediator with an eight year track record isn’t enough. (Besides being the case for all California court and government programs to whom I’ve talked, this was also true for an out-of-state family mediation program run by a religious organization. Its state required a licensed therapist to be the mediator.)

I have come to the conclusion that the chance of someone like me building a career in mediation is very close to non-existent. But I am not writing this to elicit sympathy. Rather, I am trying to figure out why this situation is the way it is. Is it me? Is it the “profession” of mediation? Is it just a matter of timing? Luck? Connections? All the above?

I wish I had had a better handle on mediation before I gave up my day job. But I didn’t (my fault) and I dove in head first. Three years later when I finally came up for air, I had learned a lot. In the interest of fostering discussion and to issue a “heads up” to others in my situation, here are some of the main things I learned:

*There is no established career path for mediators as there is for doctors, lawyers, therapists and most of the other professional professions,

*there is very little discussion - if none - in mediation trainings about the difficulty of building a mediation career,

*the regulations governing mediation from state to state is a crazy quilt with very little rhyme or reason,

*most legislators know diddly about mediation but are very susceptible to lobbying influences (particularly in the absence of any mediation lobbying presence) even as they create and pass laws that will control the future of the profession.

*There is no national consciousness that mediation is a valid dispute resolution alternative,

*there is no local, state or national leadership to help build this consciousness,

*there is no leadership to help create the profession of mediation (except on a reactive issue by issue basis),

*there is no leadership to wrest the future of mediation from the hands of ill-informed legislators and put it back into the hands of the mediation community,

*there is, however, lots of leadership to hold conferences and trainings for which mediators pay high attendance costs,

*There is a well establish tradition in the bureaucratic world that mediation is something you get for free,

*if I want to volunteer, I can be busy 40 hours a week,

*if I want to get compensated, good luck!,

*if I look to the executive directors of mediation programs - community and government - for support of the compensation issue, I find lots of sympathy but very little activism,

*there are a hell of a lot of mediators willing to work for free because 1) they want to give back, 2) they are retired and looking for something to do, 3) they believe that this will lead to paid mediations.

*There is no statistical evidence backing up courthouse claims that doing volunteer mediations will lead to paid mediations,

*there is loads of empirical evidence that, when looking to recommend a mediator, attorneys refer their clients to attorney-mediators,

*don’t expect a court program or a local, state, or national mediation program or organization to fund any kind of formal study of this in your lifetime,

*hundreds of mediators are willing to work for free without any proof that doing so will lead to a career in mediation,

*there is no will or desire on the part of most mediators to change the situation.

* Without their unpaid, volunteer mediators, there would be no mediation programs in the courts or the community,

*without their unpaid, volunteer mediators, all of the people who head these programs would be looking for jobs,

*if I want an income, I need to become the director of a mediation program...but don’t expect to mediate,

*or work on staff for a mediation program...but don’t expect to mediate,

*or work for a government or court program after I have spent thousands of dollars getting a JD or therapy degree because that’s what the law says a candidate for such a position must have.

In other words, what I have learned over the past three years is that there is no clear mediation career, there is no clear mediation profession, and there doesn’t seem to be any clear leadership or vision in the mediation community to create a mediation profession. So, in the absence of this, legislators are stepping in to pass laws today that will affect the mediation profession of tomorrow. And the resulting landscape is neither pretty or promising.

But I’m not pessimistic. I fully expect that the day will come when someone can make a career out of mediation once a national consciousness about mediation has been established. I also look forward to the day when the official mediation community - those who head mediation organizations - will take control of the profession. Unfortunately, I can’t wait for this any longer.

Meanwhile, I’m left wondering who is going to determine the future of mediation? The CDRC News article makes it quite clear that, at least in California, the lead is being taken by legislators as I believe is true for the rest of the country. It is their intention to shape the profession in their image. And while most of the proposed California bills will probably not see the light of day, one or two of them will. And when that happens, someone else will have determined in part mediation’s future.

I know that there are well-meaning individuals who are working very hard to shepherd the profession through the maze of obstacles that state legislatures are creating. But I fear that the profession is going to be nibbled away by hundreds of legislative proposals. Some of them will put up further roadblocks for someone like me without the appropriate degree.

I long for a day when mediation is a real alternative to litigation, when mediation will be a part of the national consciousness. Instead of volunteerism being the expected way mediators can practice their skills, I dream of a time when volunteering is pro bono work because the ethics of a thriving profession demands that we give back to the community. I envision a pathway by which all mediators can travel, building their ADR careers towards a soul fulfilling and financially rewarding end. And I hope that our mediation organizations will find the leadership and vision to take over the future of mediation so that the profession can advance and grow.

I welcome your comments and observations. Meanwhile, I’m available for other work starting today.

Yours -

Barry Simon
Mediated Solutions

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Copyright 2000 Stephen R. Marsh
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