If the current state of mediation is a battle over turf, there are probably casualties on both sides. Something unsettling has occurred in many areas of court-annexed mediation as a result of lawyerly efforts to keep mediation practice away from the lay public. Many lawyers complain that their peers have developed so many procedures in their mediation processes, that the option of mediation has become as burdensome as litigation.⁷⁵ Some even claim that mediation is now compels lawyers to litigate rather than explore its alternatives.⁷⁶ Additionally, many claim that an entirely different process has emerged in court-connected proceedings. Rather than exploring disputants’ feelings and the sources of disputes, many lawyers counsel their clients to approach mediation sessions adversarially. Some lawyers engage in lengthy coaching sessions to prepare clients for mediation, recommending that clients never offer information beyond merely stating the facts of a case as they have been rehearsed.⁷⁷

Whether attorneys wish to label these practices as mediation advocacy or by some other name, these tactics run afoul of the notion that mediation should be used as a healing process, which seems to violate the premises behind the Pound Conference. In fact, many lawyers admit that they attend mediation sessions merely to remain in control of their clients.⁷⁸ However, the greatest loss in the battle to secure turf is that mediators and disputants’ attorneys may be driven more by the thirst for billable hours than the terms of a potential agreement. In other words, the accretion of hours may have become the object of the mediation, instead of a mere side effect.

The new mediator should consider two related issues. First, she must determine how to engage in mediation while simultaneously developing artistic and instinctual skills. This notion of mediation artistry is foreign to most attorneys who mediate because they focus more on conveying of substantive legal knowledge. It may help a mediator to ask herself, "In this situation, am I being called upon to draw on my talents as a mediator, or am I instead being called on to follow a precise set of procedures with little room for innovation or creativity?" Seemingly, those who abide by cookie-cutter processes to handle mediation, rather than developing a sense of intuition, will ultimately encourage further impasse.⁷⁹

Second, the novice mediator must consider when to remove herself from a mediation session if the intricacies of the dispute exceed her abilities. The question here becomes, "Does this type of problem involve a situation where I would need to have practiced several years in order to facilitate a resolution to this dispute?" This second question should be the determining factor in a case. Mediators cannot risk endangering disputants’ relationships because they have, in essence, lost control over the process as a result of their inexperience.⁸⁰ For much the same reason, lawyers opposed to lay mediation have noted that disputants often demand that mediators provide them with opinions, which is solely in the realm of licensed attorneys. However, others rebut that no mediator should predict outcomes or voice legal opinions since it is the mediator’s role to remain neutral and objective, thereby allowing the disputants to decide issues for themselves.⁸¹ These are all considerations for the beginning mediator, who must set certain limits before entering the profession.

Of note to law students, the major premise behind mediation as an art is that anyone who is capable of being an artisan in the field should be able to practice in it.⁸² If mediation is an art, laypeople should be able to engage in it professionally. On the same note, if mediation ability is learned, then a mediator should learn the necessary skills, which may only involve taking an introductory course. However, if mediation requires more than a certification, e.g., years of practice in a law-related area, then a novice mediator must be able to comprehend and meet these unique demands before offering her services. Mediation practitioners have been involved in a debate over these questions for a number of years.

Some attorneys do not waver from the position that lawyers are the best suited to mediate cases. Many note transactional attorneys’ abilities to "negotiate better [and] more creatively [because they] are more accurately aware of business solutions which may be advantageous to their clients."⁸³ Others simply point to common attorney attributes, such as: the ability to recognize "[l]egal rights";⁸⁴ the ability to create legally-competent contracts;⁸⁵ the general ability to understand the complexities of the "technical skills of legal analysis;"⁸⁶ or the mere fact that the attorney learned the law in a specialized educational setting.⁸⁷ One recent article sums up these arguments in the following manner:

Many of a litigator’s skills are usable in ADR: the ability to assess legal or other risks and their potential costs, to distill complex issues and present them in a succinct and persuasive manner, to organize and marshal resources to clients’ advantage, to develop a strategy for resolving a dispute, and to advocate and execute that strategy. And because it is the threat of litigation that frequently forces the parties to explore alternative methods of resolving their dispute, attorneys with both litigation and ADR skills are in the best position to help their clients achieve the most favorable results.⁸⁸

These considerations also arise in the area of mediator certification.

Given the battle over "turf" in mediation service circles, beginning mediators should approach certification programs in a critical manner. Choosing the wrong type of training programs could limit an aspiring mediator’s employment opportunities by limiting her outlook. Mediators should try to identify programs that will train them with skills-building exercises. Aspiring mediators should avoid legal programs that exist to serve lawyers’ needs to distance laypeople from the mediation process.⁸⁹ A number of mediation training programs are tailored for legal professionals with years of experience in a given field. Obviously, while some programs are open to everyone, others are geared primarily to experienced practitioners—and may not make that bias clear from their promotional material.

It may be helpful to follow the recommendations of Eric Galton, who has identified five essential requirements for mediation training and/or certification. He recommends: (1) "tak[ing] a general ADR course" offered by a bar association;⁹⁰(2) participating in "at least 40 hours of mediation training";⁹¹ (3) "taking an extensive seminar on negotiation strategies and techniques";⁹² (4) "mak[ing] a commitment to take annual advanced ADR/mediation training techniques courses";⁹³ and, conducting extensive "self-study" with mediation publications.⁹⁴ It is theoretically possible to fulfill each of these requirements without cost through mediation center training programs, but finding the right combination of services, given the economic limitations of many centers, may compel an aspiring mediator to pay for these activities.

Even though a minimal number of hours may be necessary for effective mediation training (whether it is 40, as Galton suggested, or less), the most important factor is gaining hands-on mediation experience, i.e., doing, rather than theorizing about how to do. One successful mediator observes that "it usually takes about 30 mediations to even approach a point where you are ready to charge for your services [;] [w]hen you are there, you will know it."⁹⁵ Furthermore, a recent dialogue between two professionals at the 1997 convention for the Society for Professionals in Dispute Resolution (SPIDR), revealed the following truth about mediation certification:

An Ohio study examined 650 cases mediated by volunteer lawyers. Some had less than three hours of training; others had more than 60 hours of training, and there were all gradations in between. The amount of training had no significant effect on whether the parties settled, whether the parties thought that they had a chance to tell their side of the story, the level of litigant satisfaction with the outcome, or whether the litigants or their lawyers thought the process was fair. Expertise in the subject matter of the dispute did not affect settlement, either…[e]xperience mediating seemed to be the only aspect of qualifications that was related to increased settlement.⁹⁶

While the study above only touched volunteer mediation, it was consistent with a divorce mediation study from the private mediation arena. Thus, one can only be certain that there are a number of views on mediator certification and that the debate will rage on. Aspiring mediators are still left with the most important decision of which notion to follow. The section below addresses the way disputants perceive professional mediators. A comparison of the certification debate with client perceptions will reveal entirely different considerations, depending on whose interests the novice mediator wishes to serve.

Earlier, this Note explored the two concerns about removing oneself from a mediation: does the mediation (1) call for skills beyond the mediator’s ability, or (2) compel the mediator to offer particularized legal advise to the disputants, which would be illegal if the mediator is not licensed to practice law in the state? To help set realistic career goals, beginning mediators might avoid practicing with certain issues and populations. Yet, it is difficult to group troublesome issue areas under a specific theme. For example, while most agree that a mediator should terminate the mediation upon learning of domestic abuse between disputants,⁹⁷ not all crimes between disputants should preempt the mediation process. For example, the Department of Justice has investigated a number of successful victim-offender mediation programs that focus on the concept of restorative justice by creating ways for criminals to achieve some sort of closure with their victims.⁹⁸ Thus, it would be improper to say that all crimes are off limits.

Similar to the criminal context, it would be wrong to say that all labor matters are improper for consideration. While collective bargaining often calls for a substantive understanding of the law,⁹⁹ many individual employee grievances do not.¹⁰⁰ There does, however, seem to be consensus that beginners should avoid mediating healthcare cases without having specialized knowledge. For example, "ADA mediators should know the main points of the ADA act [just as] family mediators should know well the rules about support payments and property division."¹⁰¹ Additionally, "[i]n the medical field, where the patient’s informed consent is required, it is acknowledged that education and training are necessary to make many decisions."¹⁰²

Practitioners often argue that family mediation demands specialized legal knowledge to mediate the division of assets¹⁰³ and an understanding of child psychology when dealing with custody mediations. However, while family mediators "have been in the forefront of the movement to require training and professional conduct,"¹⁰⁴ the Academy of Family Mediators, a noted international society, recommends a minimum of only 30 or 40 hours of training before approaching these topics. This minimal requirement seems a far step away from requiring years of experience in the field.¹⁰⁵ So, as is the case with all minefields, the mediator must know herself well enough to determine whether to take the next step towards mediating. Since mediators cannot guarantee success in any mediation, it would not be inappropriate to try to resolve an issue instead of turning one away simply because it falls into a certain category. Mediators agree that certain circumstances should compel a mediator to terminate any type of mediation, regardless of the mediator’s fees, vocational calling, or experience.¹⁰⁶ If the issue is merely that a beginning mediator feels as though she needs more education, it is noteworthy that the only true indicator of mediation ability is hands-on experience in the field, which has to occur sometime.¹⁰⁷

In most studies of private mediation, researchers conclude that the average disputants are "in their thirties,"¹⁰⁸ with "middle class"¹⁰⁹ income levels and "university"¹¹⁰ educations. The surveys even indicate that most mediation clients are employed in "full-time, professional or managerial"¹¹¹ positions. These statistics may explain why a noted mediation professional expects the average fee charged for private mediation to "result ultimately at $300.00 per hour."¹¹² They may also explain why disputants who select private mediators can arrange for "luxur[ious]"¹¹³ processes like "us[ing] two mediators, one with training in psychology or a related field and one with training in law" to reach the ideal result in a divorce or custody mediation.¹¹⁴ Simply put, disputants who meet the normative characteristics described in the private mediation surveys can afford to improve the qualities of their mediations. But, surely it is the case that not all disputants can afford, and thus do not expect, catered meals at their sessions.¹¹⁵ Surely, in many cases, disputants will be so financially strapped that they will be forced to resort to what some mediation scholars consider "stripped-down" methods of mediation provided by volunteers or government workers.¹¹⁶

In this author’s own experience working as a mediator for the Los Angeles City Attorney’s Dispute Resolution Program, while the program could not afford to provide food or soft drinks to the thousands of disputants who visited its offices each year, the program could not stall scheduling proceedings until it found just the right match of lawyers and psychologists to mediate cases. Yet these variants—or the absence thereof, which some might consider a drawback—did not stop disputants of all income levels from using these services. Granted, the Los Angeles City Attorney’s program was a free service, but nonetheless it illustrates the notion that it would be extremely limiting to a new mediator to enter the profession assuming that she should raise her standards to the customer service levels recommended in many of the law texts.¹¹⁷Sometimes, especially in the case where there are cultural differences between disputants or between mediators and their clients, providing these "luxuries" may actually cost the mediator business. ¹¹⁸

Mediation scholars note that many culturally diverse clients resist seeking mediation because they perceive in mediation the same formalities of a legal system that represents the dominant culture—a culture, that in their own life experience, marginalizes members of their ethnicity¹¹⁹ and is often unresponsive to their social, psychological, and developmental needs.¹²⁰ For example, some Latino families will not even consider mediation, unless the mediator offers services at the disputants’ own home to accommodate their culture.¹²¹

Mediators must not simply assume that mediation characteristics remain constant in all situations. Accordingly, trying to follow the standards of professional mediators in multicultural communities may be counter-productive. After all, since a novice mediator will probably not have the qualifications to provide the same services as competing established attorney-mediators, she will probably be serving communities where those standards are not even the norm. Thus, the perceptions of disputants that a mediator is taking on the attributes of a dominant cultural authority-figure may very well do more damage than good.¹²²

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75 See W. Reece Bader, ADR is Fine, But Not Always Welcome as an Alternative to Battle in Court, 6 DISP. RESOL. MAG. 21, 22 (2000) (describing the increased formalization of mediation by lawyers).

76 See id. ("If it looks like a duck and quacks like a duck, it must be a duck—that is litigation and not ADR. In other words, as the litigation process is increasingly adapted for ADR, with its own attendant increased cost and delay, why not just try the case!").

77 See, e.g., Cooley, supra note 20, at 92 ("In the presentation rehearsal and at the mediation conference itself your client should only state the facts.").

78 See Susan W. Harrell, Why Attorneys Attend Mediation Sessions, 12 MEDIATION Q. 369, 371 (1993) (noting the results of a study, in which 34.9% of lawyers "did admit that they attended mediation sessions in order to control their clients").

79 This is not to suggest that newer mediators must only resort to spontaneous decisions. Clearly there are certain steps in a mediation that cannot be neglected. For example, every mediator should describe what mediation is, how it works, address parties questions and set necessary ground rules for the process for the mediation session to work. See, e.g., GARY GOODPASTER, A GUIDE TO NEGOTIATION AND MEDIATION 214 at Figure 13-1 (1997) (illustrating necessary steps in the mediation process like providing "[m]ediator [o]pening [s]tatements" and other processes to "[c]reat[e] the [f]orum" for a successful meeting). However, it is questionable that every problem must be approached in the same mechanical fashion in order to achieve resolution. Yet, some mediators suggest that there are formal cookie-cutter type ways to approach a mediation session. See, e.g., Francis E. McGovern, Strategic Mediation: The Nuances of ADR in Complex Cases, 5 DISP. RESOL. MAG. 4, 4 (1999) (noting a proliferation of "mediation outlines and practice checklists" that cover all aspects of the process from start to finish). Perhaps the ultimate sign that the practice of mediation is becoming overly codified exists in the growth of computerized computer mediation programs such as Policy/Goal Percentaging. See NAGEL & MILLS, MULTI-CRITERIA METHODS FOR ALTERNATIVE DISPUTE RESOLUTION 15 (1990) (suggesting that computer mediation programs offer more reliable results than even lawyers because it "works with many more variables simultaneously than can the individual mind"). Perhaps practitioners who adopt these computerized methods doubt that even lawyers can be trusted to apply precise formulas. However, if mediation does involve the artistry of the mediator, then routine processes would frustrate processes and even stagnate a mediator’s growth over time. See MICHAEL D. LANG & ALISON TAYLOR, THE MAKING OF A MEDIATOR: DEVELOPING ARTISTRY IN PRACTICE xii (2000) ("Unless mediators understand the underlying theoretical principles that influence and shape their r practices…[t]hey are [merely] mimics who apply techniques and interventions…without the ability to evaluate the success or failure of those interventions, and without the tools and resources to learn from each experience").

80 See Bermant, supra note 53, at 50 (warning that "[m]ediators need to know enough about the subject matter so they do not themselves become a drag on the process when they don’t know the jargon or understand the issues at stake").

81 See Chris M. Currie, Is Evaluative Mediation Really Mediation? 33 NAT’L INST. DISP. RESOL. F. (1997) ("The strategy of evaluation, prediction, and recommendation simply does not belong in mediation."); CDR & ASSOCIATES, supra note 4, (same). Cf. generally Cooley, supra note 20 (noting that all effective mediation sessions require mediators to present alternatives to clients, and often stress the advantages of resolving the dispute instead of going to court). Whether these mediation tactics are equivalent to providing legal advice has been at the core of a thriving debate. Yet, it seems clear that the major distinguishing factor separating mediation from the practice of law is keeping legal information general and refusing to "particularize[]" it to any specific case. See Joshua Schwartz, Note, Laymen Cannot Lawyer, But Is Mediation the Practice of Law, 20 CARDOZO L. REV. 1715, 1737 (1999) (noting Oregon State Bar v. Gilchrist, 538 P.2d 913, 1916 (Or. 1975) (delineating giving specific recommendations from providing general information)).

82 See LANG & TAYLOR, supra note 79, at 155 (noting that "mediators who aspire to artistry in their practices approach outwardly similar situations in very different manners, on the basis of their formulation of the case, their unique constellation of theories, and the level or reflection they are using to integrate those theories into their practice"). Advocates of mediation as art thus reject the notion that there is a "recipe, formula or special technique that will work perfectly in every situation." Id.

83 See Bader, supra note 75, at 21 (citing Eric Galton, The Transactional Lawyer as Mediation Advocate, in ADVOCACY IN MEDIATION: DOES THE LITIGATOR OR THE TRANSACTIONAL LAWYER DO A BETTER JOB? (ABA Section of Business Law, 1998) (considering the attributes of transactional attorneys who serve as mediators)).

84 See Bryant Garth, Is Mediation the Practice of Law: The Wrong Question, 34, 34 NAT’L INST. DISP. RESOL. F. (June 1997) (noting that "lawyers [] are trained to see and be concerned about [rights] implications"); State Bar Ass’n v. Connecticut Bank & Trust Co., 140 A.2d, 870 (Conn. 1958) (noting public policy interests in recognizing lawyers’ education-based "obligations to clients" to support what they say); FED. R. CIV. P. 11 (requiring attorneys to support the integrity of their written opinions at the risk of receiving serious sanctions from the bench).

85 See Gary Friedman & Jack Himmelstein, Deal Killer or Deal Saver: The Consulting Lawyer’s Dilemma, 4 DISP. RESOL. MAG. 7, 7 (Winter 1997) (noting that "[I]mportant decisions are being made [in a mediation agreement] and they require more than a cursory glance" and suggesting that many mediation agreements "leave [disputants] worse off" than they would have been had they litigated). Contra with David Gage & Melinda Ostermeyer, Mediation: One Discipline or Many, 33 NAT’L INST. DISP. RESOL. F. 12, 15 (June 1997) (noting that a "lawyer who writes the final contract [after a mediation] does not necessarily have to be one of the []mediators").

86 See Alan M. Lerner, Law and Lawyering in the Workplace: Building Better Lawyers by Teaching Students to Exercise Critical Judgment as Creative Problem Solver, 32 AKRON L. REV. 107, 111 (1999) (noting AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT—AN EDUCATIONAL CONTINUUM REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, 141-221 (1992) (describing the necessary skills required for effective lawyering)).

87 See Shortz v. Farrell, 193 A. 20, 21 (Pa. 1937) (noting the importance of "patient years of study" learning the law as the chief factor that is a prerequisite for providing legal opinions).

88 Michael Spafford, et al., ADR and the Law Firm of the Future, 3 DISPUTE RESOL. MAG. 9, 10 (1997).

89 See Louis Arturo Pinzon, The Production of Power and Knowledge in Mediation, 14 MEDIATION Q. 3, 13 (1996) (providing the following description of how certain mediation training themes adopt lawyerly themes:

Lawyers are giving the practice of mediation a greater quantity of judicial concepts and arguments, thus intentionally creating an ever widening distance between the everyday citizen and the practice of mediation. In this way, lawyers have been able to keep the new "given tool’ (mediation) from those who are not connected to the law "fraternity." A presupposed "hidden knowledge" of mediation, garnished with countless judicial terms that alienate the ordinary citizen, are frequently the most ingenious smoke screen to hide an abysmal ignorance of the theory and practice of mediation).

Most definitely, it would be quite useless for a novice mediator to invest her time, and probably a great deal of her money in a program designed to teach her a lawyerly-mediation process that embodies the characteristics described by Pinzon, supra note 89.

90 See GALTON, supra note 45 at 161.

91 Id.

92 Id.

93 Id. at 162

94 Id.

95 See Kathy Fragnoli, supra note 9, at 13.

96 See Nancy H. Rogers & Frank E.A. Sanders, supra, note 10 at 5 (describing ROSELLE WISSER & NANCY ROGERS, EVALUATION OF SETTLEMENT WEEK MEDIATIONS (work in progress) (echoing the findings of Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION: THEORY AND PRACTICE 429, 436 (Jay Folberg & Anne Milne eds., 1988))).

97 See, e.g., Linda Perry, Mediation and Wife Abuse, 11 MEDIATION Q. 313, 313 (1994) (noting sources suggesting that mediation can "decriminalize[s] wife abuse," negatively impact family roles, and "subvert" victims’ legal rights); Allan E. Barsky, Issues in the Termination of Mediation Due to Abuse, 13 MEDIATION Q. 19, 20 (1995) (observing a "‘rebuttable presumption against the use of mediation’ in cases involving domestic abuse…[due to the mediator’s] ethical obligation to ensure that the mediation is safe and fair").

98 See Department of Justice Resources page, available at http://www.ojp.usdoj.gov/nij/rest-just/ch9_toc.htm (offering a number of Internet links to victim-offender mediation programs and providing specific information about the role of the Department of Justice in the process).

99 See MURRAY, ET AL., supra note 32, at 76 ("[t]he mediator is [] dealing with experienced and well-prepared adversaries and generally starts at a higher level of understanding and structuring of positions than in community and family mediation").

100 See id. (noting the relative simplicity of single party labor mediation, but suggesting attention to detail due to the notable binding effect of a settlement in the institutional setting).

101 Id.

102 Kovach, supra note 41, at 5 (noting additionally that while "[t]he patient makes the final call [,][she] rarely [does so] without extensive consultation").

103 See MURRAY ET AL., supra note 32, (same).

104 See id. at 77 (describing family mediation issues).

105 See Academy of Family Mediators, Approved Mediation Training Programs Page, available at http://www193.pair.com/afm/afmtrain.html (describing "Academy Approved 30 hour Family and 40 hour Comprehensive Divorce Training Programs").

106 See, e.g., GOLDBERG, ET. AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 480 (2d ed., 1992) ("A mediator is obligated to inform the parties when a final impasse has occurred and to refer them to other means of dispute resolution.").

107 See Rogers & Sanders, supra note 96 (same).

108 See Irving & Benjamin, supra note 60, at 47 (noting statistics "across all [private] mediation studies" conducted in the late 1980s).

109 Id.

110 Id.

111 Id.

112 See GALTON, supra, note 45, at 171 (commenting on the propriety of mediation hourly fees).

113 MURRAY, et. al., supra note 32, at 77 n.11 (describing models of divorce mediation).

114 Id.

115 See GALTON, supra, note 45, at 172 (suggesting that mediators "have lunches brought in during the mediation" and noting that "[c]offee, water, and soft drinks need to be available in each room" (italics added for effect)).

116 MURRAY, ET AL., supra note 32, at 77 n.11 (describing what he considers to be less than "luxurious" alternatives for family mediation).

117 See generally GALTON, supra note 45 (conveying what a number of successful mediators consider to be customer service standards for private mediation).

118 In fact, few normative mediation sessions explore the effects of cultural differences in all stages of the process. See Pinzon, supra note 89, at 17 ("The essential character of culture [], alienation, social disintegration, lack of a sense of power to change one’s own life, and so on are not considered by many as a phenomena worth of study in the field of mediation.").

119 See id. at 5 (noting that mediation can be seen as a tool of "oppression," in that, "the informality and consensuality of the process, which denies the weak party the right to a system of checks and balances, and the self-posturing ‘neutrality’ of the mediator, which gives the mediator an excuse to avoid applying pressure on the stronger party" can lead to a prejudicial outcome).

120 See generally Hairson, supra note 18, (same); Bluehouse and Zion, supra note 27 (describing that most mediators who are not Native-American may experience difficulty accommodating the needs of Native-Americans and insinuating that Native-American disputants would not seek mediation services on the basis of that lack of understanding); Isabelle R. Gunning, Mediation as an Alternative to Court for Lesbian and Gay Families: Some Thoughts on Douglas McIntyre’s Article, 13 MEDIATION Q. 47, 48 (1995) (noting that many mediators, by approaching homosexual disputes in a way that is aligned with influential legal norms, provide few options to the homosexual community (describing W.A. Whittlin, Homosexuality and Child Custody: Psychiatric Viewpoint, 21 FAMILY AND CONCILLIATION COURTS REVIEW 77, 79 (1983) (illustrating the notion that mediators often approach homosexual cases in the same paralyzing way))).

121 See Howard H. Irving, et. al., Family Mediation and Cultural Diversity: Mediating With Latino Families, 16 MEDIATION Q. 325, 333 (1999) (noting that home visits stem from cultural traditions of "personalismo and ambiente," traditions that require a client-centered approach).

122 See Pierce, supra note 7, at 33 (noting that "the average citizen will be discouraged from using mediation as an alternative to the courts if they consider mediation the practice of law").