"Two Pictures of the Future: ADR in the New Millennium"

Keynote Address by Baruch Bush to the New Jersey Statewide Conference on ADR, June 1999.

The topic of the day, ADR in the new millennium, calls to mind the great futurists like Alvin Toffler and John Naisbitt. So, with apologies to them, I offer some futurist speculations and reflections, based on past developments and present trends, on what the ADR field might look like in the future.

It Depends.

My general observation on the issue, like all good academics, has to be: "It depends." Because it is possible to project two very different pictures of the future of ADR, depending on how we answer three main questions:

(1) How do we understand and interpret the present state of the ADR field; how do we describe what is happening in the field and explain it? (As we all know in this postmodern world, there can be many different interpretations of any phenomenon, including the current ADR field.)

(2) How do we understand what is happening in the larger system that surrounds our field, the marketplace and "demand" curve for ADR; who are we serving, what do they want, and how is this larger system changing and developing?

(3) How are we going to respond, in light of our answers to the first two questions; what will the field do to proactively prepare and respond to the larger system's demands?

So, based on how we analyze and answer these questions, our picture of the future may vary quite a bit.

But before venturing to sketch a few very different pictures of the future, let me set forth a major caveat: I do not pretend to be neutral and disinterested in these questions; in fact, I have a very strong set of interests. (In fact, I believe that everyone does, even supposedly neutral scholars.) I am interested in mediation primarily, rather than other ADR processes. I am interested in the key issue of the tension between different "orientations" to mediation practice (evaluative v. facilitative, etc.).

Finally, I am a strong advocate of what some call "pure" mediation, in which: the mediator's role is entirely facilitative; the mediator offers no advice or substantive direction; the focus is not on settlement per se, but on support for party deliberation and perspective-taking; settlement takes care of itself if the mediator supports party decisionmaking and interparty communication. Of course, I've spoken and written about these views elsewhere, but I recall them here to put my remarks in perspective -- and allow you to take them with a grain, or shaker full, of salt.

With this introduction, then, let's look at two very different pictures of the possible future, in each case giving very different answers to the three key questions: What's really going on today in the field; what's going on in the larger system or market; and what is being done to prepare for the future?


Picture 1: It's the Lawyers.


The first picture I call (with apologies to the President) "It's the Lawyers, Stupid!" The reason will become evident as we go along.

In this picture, we see the present state of the ADR field as dominated by one major phenomenon: the growth in the use of mediation, especially as practiced with an evaluative orientation. This includes both an expansion of mediation into new domains, such as commercial, administrative, and workplace conflicts, and a shift in older areas of mediation practice (such as family and community conflicts) to a more openly evaluative form of practice.

In each area of practice, market demand is high for a form of mediation that provides expert evaluation as a key part of the process. For example, at a recent conference in Seattle, a retired judge now working as a mediator said (to paraphrase): "I don't worry about the definition of mediation. When parties come to my office I know want they want; they want me to tell them my opinion about how to settle the case, and that's what I do." And she says she has plenty of work. Or, here's another example: At a statewide conference on mediation in Texas, one workshop presented a panel of top lawyers answering the question, "What do lawyers want from mediators?" The answer, according to all the panelists (again, to paraphrase): "We want someone to bang heads, to knock some sense into our clients and get them to settle."

So, what's happening today can be seen, from this viewpoint at least, as the growth of demand for mediation as a "no-risk" evaluation/settlement conference process, taking place mostly "in the shadow of the law" in court-connected venues, with the demand fueled primarily by courts and lawyers.

Along these lines, another story, from the other side of the world, where things seem to be moving along similar lines. At a workshop my colleague Joe Folger and I recently conducted for mediators in Australia, focusing on practice in a facilitative/transformative orientation, several participants told us: "We're commercial mediators, and we are totally committed to the facilitative approach. But it's the judges who send cases to mediation, and they tell the lawyers to find a mediator, and the lawyers all want George!" Who is George? George attended an evening session during the workshop, and put forth his view pretty clearly: "What's wrong with head-banging and pressure? The parties come to me because they want to be out of there with a settlement by 6 PM. I give it to them. And if it takes a little arm-twisting, so be it." Both George and the others agreed on one thing: George has a full appointment book, and a waiting list, and the would-be facilitative mediators have a lot of spare time on their hands.

Projecting from all this, it seems the new millennium will mean courts and other agencies looking for more mediators, with lawyers serving as the brokers between the system and the parties. And with lawyers as the brokers, that will mean continued and increasing demand for mediation as an evaluative/settlement process. Demand for ADR -- or at least evaluative mediation -- will continue to grow, driven by the legal system and lawyers, who will also continue to strengthen their control over mediation as gatekeepers to and regulators of the process.

Whoever finds this picture convincing (and appealing) should realize that it also depends, in part, on ensuring the quality of evaluative mediation services. In other words, this future assumes that those in the field will prepare for it. Some of the steps to be taken in preparation might include: improving mediator training, especially in evaluation skills, something rarely addressed in training today; placing limits on who can practice, so that those without sufficient expertise to offer reliable evaluations are excluded; stressing both substantive knowledge and evaluative skills in certification programs; and solving the thorny problem that has recently arisen about whether evaluative mediation might run afoul of "unauthorized practice of law" rules -- unless the mediator is a lawyer.

Of course, once we contemplate how all these steps might impact on the mediation field, some of us may begin to wonder whether this picture represents such a "bright future" after all. Even if the picture is convincing, is it appealing? Which brings me to Picture 2.


Picture 2, Part 1: George's secret


The first thing to say about this second view of the future is that it doesn't take issue with what we've said so far about the present state of affairs in the ADR/mediation field -- at least so far as the facts are concerned. The difference is one of interpretation. We've all seen the classic Toulouse-Lautrec painting that portrays a beautiful young girl, and then, with a slight change of focus, shows a wrinkled old woman. Two very different ways of seeing the same picture. That's the idea in beginning to sketch Picture 2: The same facts can be seen in a different light.

That different light tells us something like this: The recent growth in the use of mediation is certainly a documented phenomenon; but it does not represent an expansion of the market for ADR as a whole. Rather, it represents a shift of demand from one type of ADR to another -- like a shift in brand use from Ford to GM, while overall car sales remain static. And the reason for that shift in demand is very telling.

Up until the 1980s, the best-selling ADR process was, far and away, arbitration, both private and court-annexed. The use of arbitration had grown steadily since the 1960s, and court-ordered arbitration had really taken off beginning in the mid-60s and through the 1970s. However, due to both court decisions in cases challenging "mandatory binding arbitration" in the security and employment contexts, as well as lawyer practices in arbitration hearings, the arbitration process began to suffer from formalization and legalization. Discovery, once rare in arbitration, grew more common. Arbitrators were required in some areas to make decisions according to legal rules, so that legal argumentation became more important in the process. Written opinions by arbitrators became more common, as did increased levels of court review. The effect of all this was to undermine the very features that had made arbitration attractive and popular in the first place -- its speed, low cost, simplicity and finality.

But the market can't be denied, so by the mid-1980s, the popularity of arbitration began to decline. I remember a conversation I had around that time with a regional director of the American Arbitration Association, who told me (with some surprise) that the greatest growth in caseload in his office was now in commercial mediation. Arbitration down, mediation up.

Against this backdrop, the rapid growth of interest in mediation among courts and lawyers is understood more clearly. It had nothing to do with a preference for a facilitative, nondirective process. It had everything to do with the fact that arbitration was being rendered obsolete and dysfunctional, but some sort of informal, settlement-producing process was still needed.

That process was "found" in mediation. From the mid-80s and onward, the shift to mediation proceeded, to replace the "ossified" arbitration process with a process that would avoid formality, cost and delay, but preserve finality and settlement, under the guiding hand of substantive experts. That process was to become known as evaluative mediation. In sum: The rise of mediation usage is very real, as is the preference for evaluative mediation in the market.

But the key point here is different. This growth in demand and practice of evaluative mediation does not constitute an expansion of ADR generally into a new market. It is simply a shift by longtime users of ADR from one "brand" to another. True, as the Australians complained, George is getting all the business. But it is not new business. It is not even, strictly speaking, mediation business. It is old arbitration business, now redirected to "mediators" who are providing the same old service under a new name. And the mediation being provided is not a new or unique product. It is a reconstituted version of the old one, a substitute for an arbitration process that became unusable.

You may ask: What difference does all this make to our picture of the future? As in Picture 1, we can expect continued growth in the use of evaluative mediation, so the picture looks bright for the field. But this misses the point of the "shifted demand" insight: Use of mediation may grow, but only at the expense of arbitration. ADR usage as a whole, in this picture, will not expand much beyond its present level. Picture 2 is a picture of stasis, not growth, for the field as a whole, because it sees that the "new" demand for mediation is not new after all. The message to the field might be, third-party practitioners should reposition themselves as providers of mediation, and then take the kinds of steps suggested above to ensure quality service. But new entrants should beware, because demand is not really expanding as it might appear.


Picture 2, Part 2: "e-Mediation"


At this juncture, however, our "futurist" exploration needs to look again at Question 2, the question of what we see happening in the larger system that might affect our ADR field. Doing so reveals a factor that casts a different light on the influence of courts and lawyers on the market for ADR and mediation.

That factor is the Internet. For the first time in our economic history, we are entering a world without gatekeepers; a world where centralized institutions and hierarchies are giving way to decentralized networks. We are facing a shift from closed systems controlled by gatekeepers to open systems with largely free entry. In today's newspaper, which I brought along, there is a full three-page spread advertising Merrill-Lynch's new on-line trading service, "e-Merrill". The headline: "Announcing the biggest merger in Wall Street history: Merrill Lynch and you." Suddenly, thousands of brokers -- knowledge specialists and gatekeepers -- are wondering about job security. Elsewhere in the marketplace, Amazon.com has created a revolution in book selling without bookstores. Healthnet.com has "democratized" knowledge about medicines and treatment modalities, so that patients now enter their doctors' offices with printouts of breakthrough studies of their conditions. The doctor-patient relationship will never be the same.

In every field, the impact is the same: direct access between clients and providers, and between providers and clients, with gatekeepers and middlemen becoming less important all the time. Picture 2 sees this as directly relevant to ADR and mediation. The question will now become, not what kind of process do courts and lawyers want, but what do disputing parties themselves want.

And the answer to that question has been emerging, in both research and practice, steadily for quite some time. The answer is that parties do not want top-down, impositional processes controlled by third-party experts. They want bottom-up processes that allow them the greatest degree of participation, learning, communication and decisionmaking, with support from but not control by third-parties. E-commerce itself is a powerful example of this preference. E-mediation is not far behind.

With this factor added to the equation, Picture 2 begins to look very different from Picture 1, as far as the future is concerned -- it becomes a picture of vibrant growth, not overall stasis. Because, if mediators can connect to the likely demand from disputants themselves -- not gatekeepers -- for bottom-up dispute resolution, then they will create a truly new market for ADR, a real expansion and not just a shift from brand to brand. That market, we believe, is totally untapped and potentially very large. It is the true growth potential area for ADR in the new millennium. And it is for a form of ADR that offers hands-on, party-driven, high-touch dispute resolution -- a fairly good description of mediation from the facilitative/transformative orientation, a genuinely new product for a new market.


Two Pictures Side by Side


Both of the pictures sketched here are plausible futures for field of ADR and mediation. But are they equally desirable? In Picture 1, the field remains stable, but static, as demand and practice shift from old to new forms of directive, top-down third-party intervention. In Picture 2, the evaluative part of the field remains stable, but a whole new sector of facilitative, bottom-up intervention takes off, as it connects with a wider market and moves into the millennium.

You have probably already guessed which picture I find most attractive, most worth striving for, especially since I laid out my biases up front. For those of you who share that preference for Picture 2, let me conclude by saying that whether it develops or not depends on how we answer Question 3 over the next few years: How do we prepare proactively for the future? If we want to connect with that new market and take off into the millennium, we must work now on several crucial tasks. In our own practices, we must avoid focusing the mediation process on evaluation and settlement. In the wider field, we must resist the increasing pressure to standardize practice according to the settlement model. We must implement improved training in facilitative and transformative practice skills. And we must do one more thing without which the other steps won't take us very far: we must look beyond the gatekeepers -- the courts, agencies and lawyers -- and learn how to market mediation to the parties themselves, perhaps especially through e-commerce channels. Some of us have already begun to apply ourselves to these tasks. If we continue to do so, we may hope to see mediation growing in the millennium as a true expansion of a truly alternative form of dispute resolution -- not another version of top-down, directive intervention, but a bottom-up, party-centered process that helps transform conflict itself into constructive human interaction. That is a future that I would welcome as bright indeed.