Arbitration & Mediation

Gorilla in the room: the dividing lines in mediation practice

By Diane Levin

Last week’s annual spring meeting of the ABA Section on Dispute Resolution was endowed with an optimistic title: “ADR: Building Bridges to a Better Society”. Despite the noble sentiment it carried, something else - unwelcome and ignored - was present.

It was there in the plenary meetings and in the sessions I sat in on. No one explicitly named it, but plainly there it sat: the dividing line that separates one practitioner from the other. It was there when the famous scholar declared that cases involving legal issues are best mediated by attorneys only. It was there in one of the workshops when a facilitative mediator declared an evaluative intervention to be “wrong” and “bad mediation”.  It was there when a law professor dismissed lawyers - the original dispute resolvers - as flunkies and functionaries of a heartless judicial system. It’s the line that runs straight between attorneys who mediate and mediators who don’t practice law. It’s the line that separates facilitative mediators from mediators who evaluate. It’s the line between theory and praxis. We ADR professionals pay lip service to the values of community and collaborative effort; but the reality is otherwise for those willing to look more closely.

Other lines divide us, too, along the borders of gender and race. Women and people of color remain excluded from premier ADR panels. Women, who face gender-specific hurdles when it comes to negotiation anyway, confront particular disadvantages when it comes to the selection of mediators who assist at negotiations. Meanwhile, in the recent issue of the ABA Dispute Resolution magazine, dedicated to diversity, and which arrived the day before I departed for the spring meeting in New York, the concluding page of one article (a critical look at the lack of diversity in ADR’s upper echelons) faced an advertisement for a prestigious training organization with head shots of trainers who were white and male, with only a single woman represented among them. Yet still at the conference I heard an honored guest speaker look back on a moment in history when women faced barriers in ADR as if that time belonged solely to a long-ago past and not to the present.

It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.

So, in the words of Joan Rivers, and mediators everywhere:

Can we talk?

Full post as published by Online Guide to Mediation on April 20, 2009 (boomark / email).