Since the beginning of time, individuals and nations have employed a variety of strategies to resolve conflict. Traditionally, these methods have ranged from engaging in physical combat, to negotiating, to litigating in a court of law. ¹ While conflict resolution encompasses these methods, Alternative Dispute Resolution (ADR) deals with a defined set of alternatives to traditional adversarial proceedings–alternatives that can be more rewarding to the parties involved in a conflict. ² Advocates posit that ADR can be less expensive than going to court and can allow disputants to openly air their frustrations,³ which can be difficult, if not impossible, in a courtroom because of rigid court rules. Mediation is a process at the forefront of the ADR spectrum, not only because it embodies these concepts,⁴ but because of the ease with which mediators can be trained, and the fact that people from all walks of life can learn to master these skills. Even children can become outstanding mediators on the playground after receiving training. This concept is distinguished when compared with more traditional methods of conflict resolution because the authority to mediate depends less on one’s social station and economic status, and more on mutually acceptable community standards.

In America’s law schools, ADR presents a dilemma. It has become so widespread that most universities must offer courses in ADR to show law students what to expect as practicing attorneys. At the same time, a number of ADR doctrines discredit the legal profession and advocate non-legal methods for resolving legal issues. Thus, the law faculty must strike the proper balance in training students to be lawyers and exposing them to opposing strategies for resolving conflict. This Note explores the obstacles that keep law students and law graduates from earning a decent wage as ADR practitioners. It focuses on mediation because this area has the most potential to employ new law graduates, rather than processes like arbitration that demands expertise in the substance of an ever-changing body of law.⁵

Mediation has two faces because while it purports to be open to people of all socioeconomic levels, those mediators who want to profit by practicing can still introduce the competitive aspects of a market economy into the practice of mediation. Because mediation has become "mainstream"⁶ in society, a number of professionals are trying to stake claims in the profession and exclude others from practicing it. While lawyers argue that mediation is an extension of the legal system,⁷ non-attorneys counter that mediation is useful only when it is seen as an alternative to the legal system. This particular debate affects the interests of law students who want to become mediators.

Law students must think strategically if they seek careers in mediation. Because so many lawyers view mediation as the practice of law, they have begun to influence the standards of the mediation profession at large. By adopting standards that govern the legal system, which require continuing legal training, lawyers are closing off the practice of mediation to law graduates with little practice experience. Additionally, lawyers’ mediation fees reflect the assumption that mediation clientele are financially secure, which limits the populations that can be served by the mediation process. For a law student, it has become harder to practice mediation than practice law because the practice standards adopted by experienced attorney mediators are based on years of practical experience in the law field. These attorneys have made mediation a relatively closed profession⁸ that compels those with an interest in practicing it to conduct business without any guarantee that they will be able to survive on the wages provided by their tireless efforts.⁹ In this respect, mediation as it is practiced professionally may be creating more conflicts than it resolves. For example, fewer disputants may be served because of these economic limitations.

This Note will explain the reasons why the practice of mediation can be so deceptive. It will offer possible techniques to overcome the economic forces that repel perspective mediators from practicing in the field. Law students should find this article useful because they face a unique challenge. Because of their exposure to ADR classes, a number of law students seek jobs in the ADR field rather than traditional law firm positions. Yet they have absolutely no ideas about how to cultivate such a career, because most law courses deal with mediation theory and shift the burden of job placement onto the law school’s career service office. In fact, many students will resort to job searches with law firms, solely because they have seen few results from their efforts to obtain mediation placements–jobs at firms that they have absolutely no passion for whatsoever. These students become embittered thinking that they missed out on a golden opportunity to mediate, when all along, that golden opportunity was probably a myth.

If there is any hope to launch into a successful mediation practice, the key will be creating opportunities from the loopholes–the areas of the profession that remain uncharted or overlooked. While law students can build necessary mediation skills free of charge¹⁰ and practice the skills with real disputants in a number of volunteer programs, these programs will do little to alleviate the massive debts that most law students have amassed. Thus, the type of mediation practice addressed by this Note is mediation that will put food on the table, mediation that will pay the rent, and mediation that will allow recent law graduates to earn a decent wage. In sum, aspiring mediators must look beyond the bookshelves of their libraries. Quite possibly, they must look within the realm of their own imaginations to uncover the best opportunities. For them, the first step is to understand how mediation developed over the years.

¹ Conflict resolution involves the entire spectrum of options an individual or group may employ to resolve a dispute. It includes everything from walking away from a dispute or ignoring it, to suing a party in court, to engaging in war. See Douglas P. Fry & C. Brooks Fry, Culture and Conflict-Resolution Models: Exploring Alternatives to Violence, in CULTURAL VARIATION IN CONFLICT RESOLUTION: ALTERNATIVES TO VIOLENCE 9, 10 (Douglas P. Fry & Kaj Bjorkqvist eds., 1997) (noting "teasing, gossip, exclusion, [and] witchcraft" as conflict resolution methods).

² See ALTERNATIVE DISPUTE RESOLUTION: THE LITIGATOR’S HANDBOOK, Preface (Atlas et al., eds., 2000) ("ADR is commonly said to cover three broad topics—negotiation, mediation, and arbitration—plus some more specific procedures such as early neutral evaluation, mini-trials, summary jury trials, and moderated settlement conferences.").

³ See Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, J. DISP. RESOL. 1, 29 (1994) (describing the notion of "self-determination," wherein disputing parties are able to remain in control of their decisions throughout the entire mediation process rather than having decisions imposed upon them).

⁴ See J. FOLBERG & A. TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT LITIGATION 7 (1984) (defining mediation as "the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate dispute issues in order to develop options, consider alternatives, and reach consensual settlement that will accommodate their needs); CDR & ASSOCIATES, MEDIATION 1 (1986) (defining mediation as "the intervention into a dispute or negotiation of an acceptable, impartial, and neutral third party who has no authoritative decision-making power, to assist contending parties to voluntarily reach their own mutually acceptable settlement of the issues in a dispute"); cf. DAVID LEVINSON, AGGRESSION AND CONFLICT: A CROSS-CULTURAL ENCYCLOPEADIA 114 (1994) (rejecting the notion that mediators can be totally disinterested in tribal and spiritual communities due to their stakes in outcomes).

⁵ See generally Thomas J. Stipanowich, Arbitration: Future Lies Down a Number of Divergent Paths, 3 DISP. RESOL. MAG. 16 (1997) (explaining arbitration’s unique characteristics).

⁶ See Peter S. Adler, Lawyer and Non-Lawyer Mediation: Speculations on Brewing Controversy, 33 NAT’L INST. DISP. RESOL. F. 45, 45 (1997) (coining the phrase "mediation goes mainstream" as a characterization for its current widespread saturation among all societal areas associated with professional realms). Most federal courts and administrative agencies are compelled by legislation to use ADR as a cost saving measure. See e.g., Martha W. McClellan, Coming of Age: Arbitration, Other Forms of ADR, See Massive Expansion in U.S. Agencies, 3 DISPUTE RESOL. MAG. 17, 17-18 (1997) (synopsizing the Dispute Resolution Act of 1990, the Civil Justice Reform Executive Order, the Executive Memo entitled Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternative Means of Dispute Resolution and Negotiated Rulemaking, The Administrative Dispute Resolution Act of 1996, and the Government Performance and Results Act of 1993).

⁷ See Robert C. Davis, Mediation: The Brooklyn Experiments, in NEIGHBORHOOD JUSTICE: ASSESSMENT OF AN EMERGING IDEA 154, 156 (1982) (describing how the mediation movement began in the 1970’s, when a number of Americans volunteered at neighborhood mediation centers because they saw a legal system that did not serve people of low incomes and ethnic backgrounds). Opponents also note statistics showing how much Americans loathe the legal system. See Lemoine D. Pierce, Is Mediation the Practice of Law? Questions Arising Out of the Crisis Within the American Legal Community 33 NAT’L INST. DISP. RESOL. F. 31, 32 (1997) (describing polls from the NATIONAL LAW JOURNAL showing that the number of Americans who think "lawyers were less honest than most people" increased from 17% to 31% between 1986 and 1993).

⁸ See BLACKS LAW DICTIONARY 1210 (6th ed. 1990) (defining a Profession as "a vocation or occupation requiring special, usually advanced education, knowledge and skill").

⁹ One commentator analogizes this state to being forced to "eat macaroni" for a number of years. See Kathy Fragnoli, Ideas for Creating a Market for Your Services, in ADR PERSONALITIES AND PRACTICE TIPS 13 (James J. Alfini & Eric R. Galton eds., 1998) (describing mediator marketing prospects).

¹⁰ See Dorothy J. Della Noce, Mediation and Society in Microcosm: Providing Family Mediation Services to Low-Income Families, 15 MEDIATION Q. 5, 11 (1997) (suggesting that a number of community mediation programs offer necessary training programs to certify their mediators, often involving "certification (including multitrack designs and subject matter specialist designs, experience, ongoing training and supervision, and performance-based assessment")). Cf. Nancy H. Rogers & Frank E.A. Sanders, Whither Certification: A Dialogue on Qualifications, DISP. RESOL. MAG. 5, 5-6 (comments of Professor Highgate) (1997) (questioning the reliability of mediation training programs without direct supervision by the courts).