Friday, August 11

Worth a read this weekend...

Preventing the Death of Mediation by Los Angeles mediator Jeff Krivis, is a sobering message for those of us in less mature mediation markets than West Coast United States.

This piece, while a little black hat for my taste, reads well, especially in the context of the current debate around unpaid mediators in court connected programs.

'...What has happened in the last several years is that mediation has learned to need litigation to maintain its hunger for business.

In the early cycle of the mediation movement, the opposite was true. Litigation needed the process of mediation to decongest the court system, presumptively save money for clients and allow more control of the outcome to the parties.

Mediation has now become a commodity for litigation rather than a useful resource.

Due to the proliferation of mediators and the reliance on litigation to feed this animal, mediators are forced to conform their practices in a way that limits development of strategic techniques and creativity.

This conformity means that the mediation "product" has become a low margin commodity in many circles. Mediators copy each other in style and lose their ability to differentiate themselves.

Even the high-priced mediators begin to look like their litigation counterparts, basically offering the same service.'


Victoria Pynchon said...

for a concrete proposal for dealing with free court annexed mediation panels, see "Curing the Pro Bono Blues" at

Best, Vickie Pynchon

Anonymous said...

Maybe it's because I'm still closer to a 25 year litigation and trial career than a 2+ year mediation career that I remain full of optimism about the future of mediation. I see a whole new generation of attorneys trained in negotiation and settlement skills as well as in the theory and practice of mediation who ENTER the practice wanting better solutions for their clients, KNOWING that a $100,000 case isn't WORTH litigating and harkening back to their recent law school experiences with negotiation and mediation role plays -- not yet feeling confident of their own skills but looking for assistance in finding a creative solution to their client's business or personal problem. I will forever hear Richard Millen's voice in my head saying (yes, somewhat cranily Richard!) "people don't HAVE legal problems, people have PERSONAL problems." When mediating a commercial case, I always find the opportunity to remind the parties that their problems are BUSINESS, not LEGAL, problems and 99.9% of the time it galvanizes them to take the problem back into their own extremely capable hands and work out a business solution with their business opposite who is an "opponent" only in the legal world. I see creativity flourishing and new mediators bringing new life and fresh ideas to the profession. News of mediation's death is, I'm afraid, much exaggerated.