Mediation has seen rapid growth since the Pound Conference. In multi-door Courthouses, such as the Middlesex Courthouse in Cambridge, Massachusetts, "disputants select mediation over arbitration 47-1."⁴⁵ Simultaneously, "the largest for-profit provider of disputer resolution services reports that more than 50 percent of its cases are mediated. This statistic represents an increase of almost 20 percent since 1990."⁴⁶ Professor Kovach notes an "unparalleled growth" in mediation marked by a number of crucial benchmarks.⁴⁷ First, she cites the fact that, in the 1980s, while there were "very few state states with…mediation or dispute resolution programs [,] [b]y 1990, over 300 states [adopted such regulations]."⁴⁸ Second, she notes that all of the states have adopted dispute resolution committees, whereas fewer than 10 had done so in 1980.⁴⁹ Finally, she turns to American Law Schools, which have all begun to provide classes in alternative dispute resolution.⁵⁰ These looks may still be deceiving because most Americans do not know what mediation is.⁵¹ Additionally, lawyers have begun to exclude laypeople from practicing in court-related cases.⁵² Commentators often refer to this phenomenon as a battle over "turf."⁵³

Seemingly, lawyers are winning the turf battle over mediation.⁵⁴ This defeat of lay mediators is most visible in statistics on private and public mediation. The field of private mediation can be very lucrative. Consider the findings of a recent Georgia study where "private mediators were more likely to have a gross family income over $75,000."⁵⁵ However, before readers who do not plan on completing a J.D. begin flying to Georgia to open shop, they should note the fact that "mediators in a private setting were most likely to have a law degree."⁵⁶ Law students and recent graduates should also hold off purchasing tickets, given that most of these private attorney-mediators were between "forty-one and fifty years of age."⁵⁷ In fact, the only place where youngsters, aged 26 to 40, could find any measurable mediation employment was in the public sector. Even these public positions were few in number.⁵⁸

Are the former statistics representative of states other than Georgia? Seemingly they are. In Los Angeles, for example: "The third party-neutrals providing private ADR…are predominantly white males with a median age of 60. More than two-thirds are attorneys, and about 10 percent are former judges. Three-quarters have had some kind of legal training, and half have had some formal training in ADR techniques."⁵⁹ These private mediators also seem to be successful in settling cases. A number of studies show that private mediators achieve settlement in approximately "75 percent, plus or minus 5 percent" of the time.⁶⁰ This success rate, however, may be related to the way law firms oversee their mediators’ caseloads. Even for those private mediators who retired from law firms, the type of oversight mechanisms that firms used to govern their practice may have made a lasting impression on their personal strategies. One common practice is called "settlement brokering,"⁶¹ which rewards mediators who quickly settle cases, thereby increasing settlement statistics for the firm. Other tactics encourage the accumulation of as many billable hours as possible.

While practicing private attorney-mediators report that they are interested more in the merits of mediation rather than its financial rewards,⁶² it is impossible to deny that professional mediators need to make profits for mere survival. Profit potential exists because the courts often neglect to cap mediator fees like they regulate arbitration fees.⁶³ On this view, private mediators are free to gouge clients. Many attempt to charge disputants on the basis of a percentage of the dispute’s settlement value.⁶⁴ Other attorneys favor mediation because it requires less preparation than formal proceedings. Mediators do not have to substantiate rulings based on precedent or follow rigid standards. Simultaneously, participating attorneys can charge their normal hourly fees, merely for offering moral support and helping clients vent frustrations. These attorneys do not have to take the risk that adverse rulings by decision-makers might indicate poor preparation or bad lawyering on their part.⁶⁵ By adopting these strategies, many lawyers are "empower[ing] [themselves,] [rather] than empower[ing] their clients."⁶⁶ The public may never know about these routine practices.

Generally, rosters of mediators from all walks of life, like the National Institute for Dispute Resolution (NIDR) membership directory, reveal an unpredictable and cruel market for non-attorneys or people who are not established in a professional field. In one study, in the three years that passed since the publishing of the NIDR membership list, 78 of 150 random surveys were returned with "‘Not at this address’ or ‘Mail not forwardable’ stamped on them."⁶⁷ When considering public mediation opportunities, mediation centers seem to be the most consistent sources of employment. However, the first thing to note about this vocation is that only 12.3 percent of these centers in a national study employed more than five full time employees.⁶⁸ In fact, to avoid paying salaries, some centers specifically require all staff to be retired members of the community who are either receiving pensions from non-mediation-related jobs, Social Security, or other public assistance programs.⁶⁹

While most centers provide mediation with volunteers, these volunteers nonetheless have incentives to participate. For example, they might resolve the same types of conflicts that their highly paid legal counterparts mediate or receive certification in the field.⁷⁰ But there are few guarantees. A number of centers have severe restrictions on the type of mediation they practice. Many require teams of mediators for all cases, limiting a volunteer’s ability to receive individual feedback.⁷¹ Still other centers turn a number of disputants away from the mediation process.⁷²

In weighing their options, novice mediators must thus consider whether they should invest their time and energy into a community mediation center. But those interested in certification should note that most community programs do not offer it.⁷³ This Note will explore the politics of certification at a later time. However, it should be evident that there is much uncertainty about succeeding as a private mediator who is not a practicing attorney or professional with years of experience under her belt. Law students should consider this dilemma as an invitation to think innovatively. At the very least, because others in the same situation will give up easily,⁷⁴ there will be more room for those who persevere and develop their own mediation strategies to succeed.

45 Robert D. Raven, Preface, in ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION xv (1994).

46 Id. (describing the trends reported by private ADR firms, such as Judicial Arbitration and Mediation Services (JAMS)).

47 Kimberlee Kovach, Overview, in GALTON, id. at xvii.

48 Id. at xix.

49 Id.

50 Id. (noting that fewer than "35 percent of [] law schools offered courses that would fall within the dispute resolution filed").

51 See, e.g., ANDERSON, ET AL., supra note 13, (same).

52 See Adler, supra note 6, at 47 ("Now, at the very moment when mediation seems to have gained some measure of currency and legitimacy, lawyers are stepping up to the plate top redefine mediation as an evaluative and predictive endeavor and partition off those portions of mediation that they see as their domain.").

53 See Ozzie Bermant, A Mediator’s Soliloquy (With Apologies to The Bard and Others), NAT’L INST. DISP. RESOL. F. 48, 48 (1997) (recognizing the issue of "turf" as "the perception that a growing acceptance of mediation is a threat to the livelihood of established legal practitioners" with the assumption that "since it is the court and lawyers who are asking the question, it is likely that they will be the ones giving the answer").

54 See James S. Kakalik, et al., An Evaluation of Mediation and Early Neutral Evaluation Under The Civil Justice Reform Act: A Summary, 3 DISP. RESOL. MAG. 4, 5 at table entitled Characteristics of ADR Programs Studied (1997) (noting that in districts with mediation and neutral evaluation programs in 1992-93, lawyers and magistrate judges were the only ADR providers participating); Elizabeth Rolph, Private ADR: Escaping the Courthouse 3 DISP. RESOL. MAG. 6, 6 (1997) ("The private ADR caseload [in Los Angeles] is not evenly distributed among providers. More than half of all neutrals see fewer than ten disputes annually, while less than 10 percent handle more than half of the disputes. Nearly all of these ‘heavy hitters’ are attorneys or former judges.").

55 See Goettlet, et al., Background Characteristics and Incentives of Mediators in Georgia: Exploring Differences in Public, Private, and Government Agency Mediators, 16 MEDIATION Q. 221, 231 (1999).

56 Id. To be precise, lawyers accounted for 75 percent of the pool, while 45 percent of public and 24 percent of governmental mediators possessed a J.D.. Id.

57 Id. at 225.

58 Id. Young private mediators only accounted for only 23 percent of the pool. In both private agencies and governmental settings, they accounted for 16 percent of respondents. Id.

59 See Rolph, supra note 54, at 6 (describing mediator statistics from the Rand Corporation’s studies of private mediation in Los Angeles, California) .

60 See Howard H. Irving & Michael Benjamin, An Evaluation of Process and Outcome in a Private Family Mediation Service, 10 MEDIATION Q., 35, 49 (1992) (noting a number of national mediation studies).

61 See, e.g., Kimberlee K. Kovach, Cost of Mediation: Whose Responsibility?, 15 MEDIATION Q. 13, 26 n.8 (1997) (defining a process in which "the neutral party does nothing more than broker a deal among the parties, more often than not through their agents, the attorneys"). Often these settlement brokers are more interested in settling the legal issues underlying cases, rather than "discovering the underlying interests of the parties or achieving interest-based solutions." Id. at 15. Compare with Deborah Hensler, A Research Agenda, What We Need to Know About Court-Connected ADR, 6 DISP. RESOL. MAG. 15, 16 (1999) (suggesting that "mediators [] deliberately activate th[e] stereotype [that mediation is more successful than litigation] in order to impress upon parties the value of reaching agreement" which may account for the high mediation settlement rate). This deliberate inducement may stem from the need to perpetuate high settlement rates for firms to advertise.

62 See Goettlet, et al., supra note 55, at 228 (noting that "[m]ediators seem least likely to continue as mediators for professional or material reasons" based on the responses to their surveys).

63 See Hensler, supra note 61, at 17 ("[W]hereas arbitrators’ fees for non-binding arbitration are usually held to modest amounts by statute…mediator fees appear to be largely unregulated.").

64 See GALTON, supra note 45, at 160 (noting the fact that "mediators are adjusting up their rates based upon the amount in controversy" as one of several "abuses that are already beginning to infiltrate the ADR practice").

65 See Hensler, supra note 61, at 17 (describing attorney’s "strategic reasons" for favoring the mediation process).

66 Id.

67 See McKinney, et al., supra note 44, at 155-56 (1996) (explaining the results of a survey that the author was forced to disregard due to "the large number of undeliverable letters").

68 Id. at 156.

69 Id. at 157 (describing a mediation center in Arcata, California "that relied on the American Association of Retired Persons" for its staffing needs).

70 See id. at 161 ("The greatest number of centers reported their key services as general community mediation (39 percent []), followed by court annexed mediation (29.5 percent []), family-domestic mediation (11 percent []), training (4.8 percent []), mediation-arbitration hybrid processes (3.4 percent), other not identified (3.4 percent []), and arbitration (2.1 percent[]).").

71 See McKinney supra note 44, at 160 ("[a] clear majority of the centers surveyed reported using two mediators per session").

72 See, e.g., MURRAY, ET AL., supra note 32, at 77 n.11 ("Sometimes community mediation services refuse to mediate divorces when child custody or division of property is at issue, in recognition that specialized training and legal knowledge is needed.").

73 See Bruce C. McKinney, et al., supra note 44, at 163 ("The majority of centers indicated that they did not have a certification requirement (71.2 percent[]) while 20.5 percent [] did require a court certification.").

74 Consider the comments of GALTON, supra note 45 at 159 (observing that after "serv[ing] as a mediator in more than 1,200 cases and having created many institutional ADR Training Programs" he is still "uneasy" suggesting that there is a reliable way to start out in as a professional mediator).