Two Out of Three
This was published as a column in Negotiation Journal's January 1995 issue.
My son is getting to the age when books about colleges are all over the house. One quote from an MIT student, which you've probably heard already, stuck in my mind. It was "Work; friends; sleep. Pick any two." It seems to me that hard or undesirable choices are part of the game when you set out to do something difficult; and providing a useful mediation service qualifies as difficult. The implication of the analogy is that there may, in fact, be no very good answer to some of the choices we're faced with.
We mediators have collectively been out promoting dispute resolution in general and mediation in particular on a "mass" basis for ten to fifteen years now. Our contention that anybody should bother with us has been grounded, essentially, in three arguments:
1. that encouraging mediation will enable significant numbers of cases or disputes to be settled faster than traditional litigation;
2. that the costs will be cheaper for society and for the disputants; and
3. that the process and the results will be qualitatively "better" in one or more ways.
In turn, the qualitative claims break down into subcategories—we claim that mediation offers the parties the potential for greater direct involvement in and control over their fate, and thus offers greater procedural justice; that its results are perceived as fairer by the parties; and that the results can be measured as fairer according to societal norms.
I can't prove this, but I'm afraid what is beginning to be visible is that you can't have it all. If you are an adroit program manager, and your luck holds, you may be able to deliver on two out of three of the claims we make; your circumstances and preferences will determine which two. But with a couple of significant exceptions, you're going to have to give up some ground on the third. Let me try out some hypothetical examples on you and see how reasonable this sounds.
Suppose that a given program sets out to deliver the maximum quantity of cases together with some version of the maximum quality obtainable. This means providing to the parties, to begin with, a selection of highly qualified mediators. But that's not all it means; because if your goal is maximum quality, you must allow for the "transformative" approach to mediation, at least up to the point where one or more of the parties firmly declares it has no interest in being transformed. By the transformative approach I mean, loosely, an approach that seeks to improve the parties' understanding of how and why they got into this dispute in the first place and to improve their capacity to handle their future disputes, with each other or third parties, more constructively.
I don't think it should surprise anyone that the transformative approach normally takes some time. A straight settlement-oriented approach is quicker, while arm- twisting often is quicker yet. So the transformative approach is a policy choice, which carries with it the obligation to provide highly-qualified mediators for a significant amount of time per case. In other words: Somebody Is Going To Have To Pay for all this.
The costs take several forms, the first of which is the setup and administration cost of a program that actually does engage in significant quality control.
The second cost is the time of the mediators. Highly qualified people in our society frequently decline to work cheap, with a couple of exceptions I will get to in a bit. I am told that in Florida, a state where an unabashed and attorney-oriented private-sector model of mediation practice predominates, the going rate for mediating commercial disputes is now around $125 an hour. I don't think it's coincidence that the caseload in Florida is now upwards of 30,000 mediation cases annually—not small claims and divorces, mind you, but what would in many states be categorized as Superior Court cases. Where I live in Wisconsin, meanwhile, the work of mediating such disputes was early identified by a public-spirited group of people as a work of public service which ought to be performed by attorneys volunteering their time pro bono. And so they have. But the caseload has been smaller than in Florida. A lot smaller. A shortage of capable pro bono attorney- mediators isn't the only factor, of course; but given the whole history of our society, to define this work as pro bono does lead it to be seen in somewhat marginalized terms by most people.
A third category of cost is the parties' own expenses, for both their own time and that of their lawyers. This is a particularly significant issue if the transformative approach is contemplated. So here we have the first "policy," and it clearly disfavors economy: in the pursuit of quality and timeliness on a large caseload, you have had to give something up.
Now let's try another combination: economy and speed. Fast, cheap mediation, available any day of the week, just walk in. Sounds great to me as a potential disputant—until I start asking how you're going to guarantee that I get the substance of mediation, not just the trappings.
In the state agency I work in, we regard training to "journeyperson" standard as a minimum of three to five years' full time employment. This implies a total investment of maybe a quarter of a million dollars per new hire by the time we feel we can reasonably trust them with any case that comes up. I don't know a single person who has had any responsibility for quality of a program who really believes that you can train a mediator from scratch in anything like forty hours. In fact, there is some reason to believe that the typical forty-hour type program is not primarily a cheap training program at all, but rather a fairly expensive selection device. Linda Singer, who has taught as many of these courses all over the country as anybody, commented at a session of SPIDR a few years ago where we were discussing the ins and outs of performance-based testing, that invariably when she is hired by a program to teach under these circumstances, the program managers drop the other shoe at the end of the week. "Now before you leave" they say "Which ones should we keep?"
That's a realistic response to the conditions. The skills necessary to mediate successfully can be acquired in lots of ways. So if you're a fairly hard-headed program manager, it may not matter if you can't do much training as long as your cases are not particularly demanding; forty hours of role-play-intensive time with a batch of candidates can tell an experienced "trainer" a lot about which people came in with most of the right skills. Whether programs are being straight with people about the multiple function of the forty hours is problematic, but on a quality-control level I suspect this approach can work pretty well.
But of course that's not the end of it. By promoting the service on the "fast, cheap" model, our hypothetical program is impliedly encouraging everyone it encounters to take its claims on the parties' time lightly. After all, only a small percentage of the parties' costs in any sizable case are in the form of mediators' fees even when the service is being provided by a well-paid private practitioner. And the parties get to split that cost. The cost of their own time, their lawyers' time, and the difference between the settlement and the anticipated cost of each party's hoped-for outcome they bear separately. So arguing "fast-and-cheap" establishes a baseline of expectations in the parties' minds that goes beyond cheapness of the mediator to cheapness of the process as a whole. And if the settlement wasn't as "integrative" as it might have been, because the mediator was too rushed to get beyond simple distribution or not sufficiently perceptive or well-trained to see the potential, the value or quality of the settlement will be lower to both parties.
The Speed and the Numbers
All right, let's go to the third leg of this triangle—everybody's favorite, economy and quality. I am not a cynic, such as to say it can't be done, and besides this is the area in which my exceptions apply. I am, I think, a skeptic, and am going to say it can't be done as often as we would all like. Here's why.
The costs of performance-based selection methods, once again, are substantial. To the extent that a week advertised as "training" is largely serving as a disguised form of performance-based selection, it costs still more. And a really thorough training program is really expensive.
Yet I have to admit that there is a class of exceptions. All of the work I've been involved with on selection and training of mediators, and most of everybody else's, has begun with the observation that no particular amount or type of training or experience seems to guarantee competence as a mediator, and with the corollary that good mediators can be found who have acquired their abilities in wildly different ways. Precisely because the basic skills of a mediator can be acquired in many contexts, sometimes the manager of a program has extrinsic evidence of competence, even to the degree that the person needs little training investment before being turned loose on actual clients. Sometimes, you can find someone whose abilities with the parties are of such a remarkable order that the parties find themselves in the "transformative" mode almost before they begin to notice the time investment. And sometimes you-the-program-manager can even get this paragon of mediation virtue to work for nothing, because of the other satisfactions that this work can bring. And when this is so, more power to you.
But to the extent that there are people like this, they are what in any other field are called "naturals." There is no field of work in which many of them are around (in most locations), and also they have a lot of fun in their chosen field, for obvious reasons. So I will postulate that they tend to be among those who show up in the field early.
And that's why the conundrum I posed has been so slow to emerge into daylight. In a nutshell, I think that our programs and parties have had the benefit in the early years of what (for most) was a one-time bonus: the availability of a core group of people who learned the skills of mediation somewhere else, were unusually suited to this field, recognized that and got into it early, were committed to social change and saw this field as the right place to make their contribution. The caseloads, meanwhile, were small enough, and the programs few enough in number that while there were never enough of these public-spirited "naturals" to go around, there were enough that lots of programs, budget or no budget, had a few such people who could be trotted out when someone influential was looking. (I hope that doesn't offend anyone, but I think it's self-evident that if a program has people of varied talents, and cases of predictably varying difficulty or conspicuousness, the manager is probably going to put her best resources where they'll show.)
But returning to my thesis that you can have two out of three, even allowing for this exception, the implication of demanding both economy and quality is that you sacrifice the ability to handle large numbers of disputes in this manner. The programs are bigger now. There are more of them. The supply of naturals willing to work for nothing, meanwhile, hasn't increased proportionately in most mediation "markets"—at least, I see no sign that it has. And that means either that you are going to have to send some parties away; or keep them waiting for a very long time; or give their cases to someone who is not a natural at this. (My second exception is that in certain local markets—notably Washington, DC, where there's a superfluity of talented mediator-lawyers who loathe their regular jobs—this may not be true.) Of course I've oversimplified this. But it seems to me that we have arrived at the point in our field where most programs can no longer assume that a sufficient number of first-rate mediators will work indefinitely for nothing or next to nothing.
Let me finish the argument plainly. I don't think we have oversold the qualitative benefits of mediation, but we haven't yet put the proper infrastructure and controls in place to obtain them consistently. And I don't think we have oversold the numbers of disputes that can be resolved through this means, though we have sometimes settled for the appearance of mediation rather than the real thing in attempting to bring in enough people to handle all those disputes.
What we have oversold is the economy of the process. In particular we have encouraged the courts and other supervising authorities to underestimate the costs of a properly managed setup, initial selection and training phase. The courts and the bar have learned quite a bit about this process in at least some parts of the country. Perhaps they no longer have to be offered a bargain-basement special to get them interested. And perhaps the litigants and the public now know they have enough to gain from more integrative or transformative settlements that we can begin to insist on some additional degree of investment in the basic necessities of this field. The resulting policy choices are, I think, both inevitable and better made in daylight.