Troubling trends observed as an Ontario commercial mediator compel me to once again take up my chiclet-keyed sabre.

That the following are indeed trends in commercial mediation in Ontario is unsupported by any reliable data – because no one keeps track. No one records. It’s all anecdotal.

Still, I’m now closing in on 30 years as a mediator in this jurisdiction with about 4,000 mediations completed. My recent conversations with repeat users: lawyers, defence clients and, of course mediators, certainly suggest something like the following trends.

1. Settlement Rates Declining – There’s a sense that fewer and fewer cases are resolving at mediation.

2. Ossification of the Process – Stagnation and rigidity has become the order of the day as innovation is eschewed. Joint session (if there is one) ritualistic chest beating, followed by offer exchanges (usually ridiculously outside the appropriate zone) culminating in some mediator intervention leading sometimes to resolution but more often to #fail.

3. Fee Pressure – Cost-conscious institutional defendants are become more aggressive as they seek to reduce the expense of participating in mediation. Tactics include: (a) defaulting to a half day mediation as opposed to the previous standard full day; (b) insisting on the use of “Roster” mediators who’s fees are a fraction of non-roster mediators; (c) warning mediators not to increase their fees or risk loosing work; and (d) negotiating “bulk rates” with mediators.

4. Reduced Participation by Clients – Now, most often, lawyers will either advise against or not allow their clients to speak in the mediation joint session – and sometimes not to the mediator in caucus either.

5. Mediation Briefs: Late and Laughable – Mediators frequently have to chase lawyers to get the Briefs, they are often delivered the day before (sometimes the morning of) the mediation and, when they do arrive the Briefs are often pathetic. Just last week, in a single case each of the two Briefs misnamed the other party – in one case, repeatedly!

6. Retrograde Advocacy Skills – Lawyers seem to be reverting to an advocacy approach I thought had gone out of style 20 years ago characterized by, “I’ll huff and I’ll puff and I’ll blow your house down!”

7. Ineffective Negotiation Skills – Does anyone remember, “Getting to Yes”? Do lawyers pay any attention to the work of the Harvard Negotiation Project? Do they understand the difference between an “interest” and a “position”? Can they discuss the importance of “aspiring” and “anchoring”? Can they spell, BATNA?

8. The End of Dignity & Respect – Perhaps it’s a sign of the times, modelled by political discourse, but the notion seems ascendant that better results at mediation are achieved by signaling total disrespect for the opponent and depriving the foe of any remaining vestige of dignity.

9. Complacent Mediators – And perhaps most distressing of all, mediators faced with the foregoing just grinning and accepting it all – reflecting, perhaps, the realities of the current market place (yes, me included).

Depressingly, this list could go on but I’m sure you get the idea by now.

These trends are a problem because they move us away from the promise of mediation. That promise, simply stated, was that reasonable people could engage in a dispute resolution process – mediation – that would, in the vast majority of cases, allow them to agree upon a mutually acceptable solution in a manner quicker, cheaper, more certain and more satisfying that the traditional litigation process.

The trends identified above, left unchecked, will lead to the opposite:  more prolonged and costly litigation, fewer mediations, fewer mediators, more dissatisfied lawyers, more dissatisfied clients and a sad slide to the status quo ante-mediation.

So, what’s to be done?

Steven Pinker, in his book Enlightenment Now: The Case for Reason, Science, Humanism and Progress, is an uplifting read for anyone interested in these issues. He writes, “The first keystone in understanding the human condition is the concept of entropy or disorder, which emerged from 19th-century physics and was defined in its current form by the physicist Ludwig Boltzmann. The Second Law of Thermodynamics states that in an isolated system (one that is not interacting with its environment), entropy never decreases.”

Happily we humans are not in a  closed or isolated system. We have many sources of energy to draw upon to help us fight the chaos of entropy.

And so it is for those of us who care about the future of mediation. We observe the worrying trends but we don’t crumple into a fetal position. We draw on our sources of energy to fight the entropy. We ask the questions: what are the options for solving this problem? Which of those options are to be preferred? What can I do to advance the solution?

Options for improvement might include some of the following:

1. Education – Recognition of mediation advocacy as a core competency leading to improvement to mediation advocacy training in law school and subsequently.

2. Community  Enhancing a sense of community and unity within the mediation community.

3. Regulation – Examining what, if any, regulatory changes may be required for more effective mediation.

4. Professionalization – Will a move in this direction enhance the future of the mediation process?

5. Promotion – Enhanced promotion of the mediation process to users, courts, regulators and others.

I envision this as an ongoing conversation and one this Blog is uniquely positioned to facilitate. I look forward to your comments.

Finally, let me note that it’s been 1,292 days since I last posted on the Kluwer Mediation Blog. It’s good to be back and I want to thank the editors for welcoming me back with such open arms. I’m looking forward to our ongoing association. 

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9 comments

  1. Rick, your first three points strike me as consequences of the natural evolution of the practice as its use and popularity increases over time, and more disputes are sent to mediation.
    But the other observations suggest that the capabilities of those practicing (whether as party, counsel, or mediator) has not kept pace with the growth in number or different types of cases now going to mediation, ie, the process is not being optimized. If so, then points 3 and 4 of your proposed solutions would seem to be the obvious starting places.

    1. Michael, I have a growing sense that you are right about regulation and professionalization. IMI has done vanguard work in this area and it’s something the field in North America needs to pay more attention to.

  2. Thanks for your post Rick. It’s a depressing vision of mediation’s development from a country that many of us look to as an example. Will mediation go the way of arbitration, tribunals and, before them, equity in becoming so complex and adversarial that they look just like courts? Your fellow countryman, Harry Arthurs, brilliantly described how the courts of common law in Victorian England set out to suppress all alternatives to themselves – ably abetted by the legal profession (Without the law: administrative justice and legal pluralism in nineteenth century England. University of Toronto Press, 1988).
    Your point about community may be a good direction. How many of us have the confidence to say, “That’s not how I do it”? We need a bit of solidarity to stand up to the forces you describe (if we want to). But the problem of oversupply does tend to mean that there will always be mediators keen to get the work and willing to accept the terms.

    1. Charlie, Thanks for this. It’s a challenging situation but we can’t despair! Energy has to be devoted by all mediation stakeholders as we consider options for the way forward. The next chapter for mediation won’t write itself. This Blog allows for globe-spanning dialogue on these issues AND there is a critical need for local action in each jurisdiction. Each of us has to do what we can to move matters forward.

  3. Thank you for your post Rick. It makes provocative reading. Both your analysis of trends of significant concern and your approaches to address the trends resonate with me. Worryingly, (worrying me) the overall effect of the nine + trends is greater than the sum of its parts. There is hope however, because the five approaches to improvement that you identify, taken together, will have an exponential effect on redirecting the trends from withering to thriving.

    It is your introduction that captivates me because it contains the key to redirecting the trends from withering to thriving:
    “… trends in commercial mediation in Ontario are unsupported by any reliable data – because no one keeps track.
    No one records. It’s all anecdotal.”
    Why is this?
    I suggest that it is because mediators, individually and collectively, have grown dependent upon one aspect of their practice and that this aspect asserts a disproportionate influence on maintaining mediation as a precarious practice. I think of this aspect as a villain, a wolf in sheep’s clothing.
    You say ‘No one records. It’s all anecdotal.’ I hear ‘There is no data.’ Without data we condemn ourselves to being seen to belong among the fads on the fringe; to the alternative sector; a sector that could just as accurately be named ‘unsubstantiated’. How many of us are willing to say that we practice UDR, let alone keep a substantiated record our practice of UDR?
    Data alone, however, is/are not the answer. It is data that are valid and reliable that are the passport to mediation becoming a practice of substance and a profession of credibility with a promise of sustainability.
    Valid mediation data that is reliable are yet to be identified and agreed. And why is that? There are many, many reasons: some structural, some practical and some mythical. The mythical lead me to my conspiracy theory. IMHO the data-denying villain is a double agent. It has a unidimensional personality, characterised by a construct that is revered by mediators across the world; heralded as pivotal to mediation. It is a creature that thrives in the warm, dark, damp caves of mediation practice. As a result, the process and the promotion of mediation, and therefore the practitioners of mediation have become dependent upon it.
    Who is the villain?
    The villain, in my opinion is confidentiality. Together with its siblings, privacy and inadmissibility, they wield their power, thrive and deprive mediation of its oxygen. They keep the would-be data hidden at best, and at worst, they cause it to be released in the form of information, which without validity and reliability, is misleading misinformation.
    Step 1 in the revival and the thriving of mediation is to develop a much more sophisticated approach to confidentiality which gives it the status of other constructs of mediation including future focus, peer interactions and inclusivity. Perhaps the sophisticated approach could start with a constellation of confidentiality that is dynamic and incomplete, rather than maintaining linear, binary, static views of confidentiality, privacy and admissibility.
    One among many starting points in the shift from withering to thriving is to consult a professional statistician.
    This comment is also posted on my blog ‘Mediation Musings’

    1. Margaret, thank you for this thought-provoking comment. I think you’ve struck an important chord here that, interestingly, echoes themes advanced in Steven Pinker’s, Enlightenment Now, referred to in my post. Solving the challenges besetting mediation will require the application of reason and the scientific method. But, no data, no science. A rethinking of the role and scope of confidentiality in mediation seems to me a very worthwhile undertaking.

  4. Rick, thank you for sharing what your ADR environment looks like. I feel badly for you, stuck there in commercial mediation! My environment looks a lot better. Maybe it’s because half of we do here at St. Stephen’s Community House isn’t done in the justice system, its done right inside workplaces and neighbourhoods, families and schools, churches and businesses and all sorts of other places. It’s in the shadow of the law of course (what isn’t?), but usually without lawyers and using processes so different and with such different intentions (resolution of presenting problems is not the goal) that the environment we work in must be entirely different. We see a significant strengthening of demand for mediation (and related training) across pretty much all the sectors we work in: housing, charitable and government services, HR and workplaces (where new regulations on violence, harassment and safety have driven ADR), B to B and elsewhere.

    And where we do restorative justice in youth and adult criminal court, tribunals, regulatory bodies like the OIPRD and other justice system settings, things looking decidedly promising. I just had a conference call with half a dozen other community mediation services across Ontario, and we agreed that opportunities for new restorative justice work are on the increase. Sure, the volume of rhetoric about ADR from Ministers and government studies isn’t quite matched by real programs and funding. But real programs and funding are growing. To adopt your anecdotal method Rick, from my small vantage point over the past year I’ve seen: new mediation pilots at Toronto’s Committee of Adjustment and by-law department (Council just passed that resolution two days ago), the inclusion of ADR as a priority for a couple of city complaints commissions, the beginning of real caseload at the OIPRD (who handle public complaints about police in Ontario), changes in the way the Landlord Tenant Board does diversion to ADR (eviction is a particularly important kind of conflict). We see the emergence of ideas like “community courts”, “restorative cities” and service Hubs, that are perfect environments for mediation. We’ve also watched the continuing growth of family mediation, including ADR being introduced to other professions there, financial advisors, child psychologists, business evaluators and others.

    For what its worth, I’m seeing a resurgence of interest internationally too. ADR classrooms are filing up with international students, here at St. Stephen’s we seem to be hearing more often from Africa and the Caribbean, and I’m tracking a lot more ADR activity in Europe and it isn’t all arbitration. As the planet shrinks ADR may become concentrated enough that even commercial practice will feel the waves of renewed interest.

    There are some worrying signs, I admit, and I share your concern that we still may not achieve the promise of mediation. Data and evaluation are rudimentary, it’s true. With growth comes the risk we’ll think we’ve done what we set out to do, and we can stop proving it and innovating. But in my environment ossification of the process is not a worry. In fact, we feel a constant demand to improve out game around mental health, violence and safety, language and cultural capacity, age demographics and the radical switch of human relationships into social media. We’re introducing new models of practice and raising the standards of our existing ones in response.

    So don’t despair: it looks to me like this boat will float a lot higher yet.

    1. Peter, thank you for this. Your comment makes the point that there’s a lot of good news about mediation and it’s important news for all of us in the field to be aware of. Thank you for taking the time to share. Bolstered by our awareness of the efficacy of the mediation process and believing in its expanding role in all areas of dispute resolution I am optimistic that solutions will be found to the challenges we encounter.

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