Part II: The Origin of Mediation

It is difficult to chart the precise origin of mediation. One reason why is because the history of mediation has often been approached with an "ethnocentric" and "monocultural" viewpoint.²¹ It is possible that we may never gain a complete view of the origin of mediation since colonization suppressed or totally extinguished certain cultural practices.²² On another view, many scholars attempt to address these issues by tracing mediation back to biblical times.²³ On balance, historical mediation examples provide enough diversity to make important historical distinctions.

However, scholarly mediation literature existed as early as 1680, when Johann Wolfgang Textor described essential international mediation standards.²⁴ Tribal communities have also practiced mediation techniques for centuries.²⁵ In China, for example, the People’s Mediation Committees that "resolve over 7.2 million disputes [annually]…throughout both rural and urban communities"²⁶ are based on aged societal principles that have long supported peaceful coexistence. Additionally, Native Americans adopted their own dispute resolution procedures long before the American settlement. Just recently, the Navajo have returned to the dispute resolution procedure named Hozhooji Naat’aanii, which they have not practiced since 1829, when the government first imposed its own judicial standards on their clans.²⁷

American settlers also developed dispute resolution in the early years. Mediation historians often note this early dispute resolution mindset by citing the fact that "George Washington put an arbitration clause in his will to resolve disputes among his heirs" and Abraham Lincoln "arbitrated a boundary dispute between two farmers"²⁸ as a fledgling lawyer. And, assuming that wise men and elders were mediators, granted their apparent partiality,²⁹ town sheriffs, clergymen, and even pioneers like Charles Ingalls from the Little House on the Prairie television series³⁰ actually practiced some form of mediation. Yet, it would be difficult to say that these influential members of the community were professional mediators.³¹

As opposed to occasional or part-time mediators, full-time mediation professionals were probably first employed as direct appointees of the Secretary of Labor to fill the position of "Commissioners of Conciliation" in 1913.³² On a larger scale, mass employment of mediators came with the creation of the Federal Mediation and Conciliation Service (FMCS) in 1946. The primary focus of the FMCS was to resolve labor disputes.³³ Cases such as Youngstown Sheet & Tube Co. v. Sawyer³⁴ show the importance of providing trained neutral parties to resolve heated labor conflicts.³⁵ The FMCS exists today with a much broader mission that includes aiding federal agencies in developing their own mediation programs.³⁶

Aside from the creation of the FMCS, there were few employment opportunities for full-time mediators. In fact, thirty years passed before mediators were again employed at any measurable level.³⁷ In the 1970s, the development of mediation broke off in two distinct directions. One destination was based on the notion that mediation was an extension of the legal system. On this view, many advocates even saw mediation as an effective means of narrowing issues for litigation in courts. The other destination was detached from the legal system, offering mediation as a process that could deliver better results than the adversarial system only because it was separate from the legal bureaucracy. A beginning mediator must be careful to note the path on which she is traveling because serious financial repercussions may result from confused expectations.

Ironically, these two divergent mediation approaches emanated from the same historical origin, i.e., the Roscoe Pound Conference of 1976. Roscoe Pound had been an influential force in critiquing the legal system early on in American history.³⁸ In 1976, legal scholars met to continue his legacy by brainstorming possible improvements for the American legal system.³⁹ The urgent need for alternatives to litigation materialized in the concept of the "Multi-door Courthouse," as well as the contrary notion of the Neighborhood Justice Center. On the one hand, the Multi-door Courthouse concept, originated by professor Frank Sander, envisioned a scenario in which an aggrieved party could simply go to a kiosk at the entrance of a courthouse where a facilitative attendant would then direct her to one of many doors. Each door would provide a different alternative for resolving the problem.⁴⁰ In this respect, the legal system could help achieve the most satisfactory result, in effect placing responsibility for alternative processes like mediation in the hands of the judicial system.⁴¹ Contrarily, the Neighborhood Justice Center grew from the need to escape the institutionalization of a legal system that was attacked for distancing those who could not afford its services.⁴² Both of these views resulted in enabling legislation, such as the initial amendment to Rule 16 of the Federal Rules of Civil Procedure, which forever altered conceptions of legal justice by recognizing mediation as a valuable practice.⁴³

New mediators should take note that the goal of the Neighborhood Justice Center was training volunteers to mediate, not paying them. Although America recognized a mediation calling, community mediators were paid minimally or not at all. In fact, those who received compensation at the centers usually conducted a number of administrative tasks and were paid for executing those duties, rather than mediating disputes. ⁴⁴ Thus, when mediation historians note that "[l]awyers, therapists, retired judges, and entrepreneurs with no particular professional identity are hanging out shingles as mediators or judges for hire," they are probably speaking with the Multi-door Courthouse concept in mind. The problem for novice mediators is that the market for Multi-door Mediators is as saturated as the market for lawyers–possibly because there are so few differences between the two markets.

11 Anyone with the ambition to accurately chart the development of mediation step-by-step and program-by-program would face a number of uphill battles, to say the least. First, mediation is a relative term. A number of articles describe the current scenario in which even the most noted mediation scholars have problems agreeing on the definition of mediation. See, e.g., LINDA R. SINGER, SETTLING DISPUTES: CONFLICT RESOLUTION IN BUSINESS, FAMILIES, AND THE LEGAL SYSTEM 15 (2d ed. 1994) ("unfortunately, even professional dispute resolvers do not always refer to the same process when they use a particular word to describe it (referencing confusion over the term "mediation")). The second major problem is the fact that a proper inquiry into the development of mediation would require a science for categorizing programs into different stages and then drawing a precise line to delineate exactly which programs, against the advice of the experts, would not qualify.

12 Who is to say that a highly motivated entry-level mediator might not be able to generate business solely on the premise that she has discovered a new opportunity? Even if the premise turns out to be false, the mediators’ attitude may develop the synergy necessary to build a steady stream of clients. This has been the case for a number of entrepreneurs. See PETER F. DRUCKER, INNOVATION AND ENTREPENEURSHIP (1993) (reviewing how entrepreneurs have overcome various obstacles in succeeding with their inventions). This last example highlights precisely the reason why it is futile to study every single mediation movement: a mediator’s decision to invest time and energy into the profession derives wholly from the mediator’s own perception of the opportunities that exist. Therefore, it is more important to become comfortable with the practice of distinguishing between different mediation movements and areas, rather than getting tangled in the contents of their historical analysis.

13 See, e.g., JANICE W. ANDERSON, ET AL., COMMUNICATION SKILLS FOR SURVIVING CONFLICTS AT WORK 128 (1996) (observing that "[i]gnorance of mediation is one of the major obstacles to its use in the United States’" because the process is so new).

14 See Jose C. Feliciano, The Advancement of Mediation, 3 DISP. RESOL. MAG. 4, 4 (1996) (observing that the requirements of the ADR field, and mediation "change[] almost daily").

15 See J.L. HOCKER & W.W. WILLMOT, INTERPERSONAL CONFLICT 8 (1991) (noting that conflict "alternates with harmony in an ebb and flow pattern" perpetually in most every area of our lives).

16 Note the initial idea of Neighborhood Justice Centers discussed later in this section. These programs did not appear spontaneously. Instead, they emerged as part of a concerted effort to create alternatives to litigation. It took the efforts of outspoken mediation advocates, to sell this mentality to the public. See Davis, supra note 7 at 156-57 (discussing motivations for the Pound Conference and necessary public activism).

17 Note the famous case of Dames & Moore v. Reagan, 453 U.S. 654 (1981) (holding that President Reagan could freeze all Iranian bank accounts on the basis of his Executive power to conduct international negotiations and agreements). Because assets were frozen, an arbitral commission was established to resolve the claims of American corporations with suits pending against Iranian corporations. While these cases were arbitrated by governmental bodies, it is quite possible that Iranian and American businesses with ongoing relationships saw the need to mediate the hostilities they may have felt towards one another in light of changed circumstances. Now, suppose a perceptive dispute resolver had invested her energy in creating a mediation market to resolve those specific tensions. With career goals in mind, she would have to determine the likelihood that she would be able to mediate only for the life of those particular conflicts, and that she would literally be racing against time. This is not to say that all fields that are ripe for the introduction of mediation are time limited. But many may be.
Take for example, the relatively new need for healthcare mediation that a number of institutions have recently recognized. See Leonard J, Marcus & Edward A Dauer, A New Era: Transformation of Health Care Brings New Strains of Conflict, Needs For Negotiation, 5 DISPUTE RESOL. MAG. 3, 3 (1999) (addressing new healthcare mediation issues). This issue raises similar concerns of timing, i.e., current policies that are ripe for mediation may be abandoned in a matter of years. A number of commentators argue that Social Security is an area that will necessarily undergo much change in the near future because the system cannot perpetually pay off benefits to successive generations of the needy. See Stacy Sanders, Student Paper, The Tragedy of Social Security Reform, available at http://peace.saumag.edu/faculty/ stewart/techcourse/students-s99/Sanders-Senior_Citizens_Services.heitml (noting that "[b]y the year 2030, the population of senior citizens will double due to the baby boom generation, but the population of working Americans contributing to social security will only grow by fifteen percent").

18 See generally Cherise D. Hairson, African Americans in Mediation Literature: A Neglected Population, 16 MEDIATION Q. 357 (1999) (noting that cultural differences often influence members of minority groups not to seek mediation services). Clearly, if a percentage of potential clients are self-selecting themselves out of mediation services, the novice mediator must be willing to take the gamble that she can convince reluctant participants to mediate or avoid approaching this sensitive area until she has developed enough of a client base to support risky endeavors.

19 See generally, Marilyn S. McKnight, Access to Mediation Services for Rural, Low-Income, and Culturally Diverse Populations, 15 MEDIATION Q. 39 (1997) (describing impediments to disputant access to mediation services).

20 See, e.g., JOHN W. COOLEY, MEDIATION ADVOCACY 43 (1996) (including "review[] [of] the pleadings in a chronological order [and] types of motions filed and the orders and opinions entered with respect to them" among necessary steps before conducting any mediation). Many of these necessary skills, if actually required in a mediation session, will require years of familiarity with actual law practice. A mediator’s inability to meet these requirements may hurt all of the parties involved.

21 See Hairson, supra note 18, at 360 (explaining that the current body of mediation "literature explores issues that are examined from a Eurocentric-based, monocultural perspective, which assumes universalistic application of the mediation process without regard to cultural and ethnic differences among individuals"); compare with E.K. Proctor & L.E. Davis, The Challenge of Racial Difference: Skills for Clinical Practice, 39 SOCIAL WORK 314, 315 (1994) (noting that most social service professionals, many who incidentally have more strict training requirements than mediators, "have virtually no meaningful contact with [multicultural disputants] before seeing them as clients).

22 See Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587, 626-31 (1993) (discussing the concept of "false generosity" and the way that dominant cultures can foster dependence on the part of oppressed minorities without respecting their diverse and traditional needs). Dependence on society, in this respect, may actually be creating ineffective mediation results. Accordingly, the novice mediator could surely benefit by taking a historical approach and recognizing how history influences mediation services. The most economically devastated communities are surely areas where most lawyers probably do not want to invest the time to learn all about the negative results of the system that pays their bills.

23 See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 25 (2d ed. 2000) ("When looking for a historical reference to the initial use of mediation, commentators often quote the Bible.").

24 See Douglas Lind, On the Theory and Practice of Mediation: The Contribution of Seventeenth-Century Jurisprudence, 10 MEDIATION Q.119 (1992) (describing JOHANN WOFLGANG TEXTOR, SYNOPSIS OF THE LAW OF NATIONS (1680).

25 See generally LEVINSON supra note 4 (noting how tribal communities used mediation for centuries).

26 KOVACH, supra note 23 at 25 (explaining how Confucian traditions helped shape this current practice).

27 See Philmer Bluehouse & James W. Zion, Hozhooji Naat’aanii: The Navajo Justice and Harmony Ceremony, 10 MEDIATION Q. 327 (1993) (distinguishing between Native American peacemaking practices).

28 SINGER, supra note 11, at 5. Ironically, these oft-cited examples do not represent practices involving neutral third parties with no decision-making capability. See EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIVE DISPUTE RESOLUTION: THE ADVOCATES PERSPECTIVE 1 (1997) (defining arbitration as "private judg[ing]" by a "neutral, unbiased expert on the subject matter of the dispute"). I have chosen not to investigate career options in arbitration because most arbitrators enter the profession on the basis of their extensive "substantive" knowledge of the law. Stipanowich, supra note 5 at 17 (illustrating recent trends in the regulation of the arbitration profession).

29 See LEVINSON, supra note 4 at 114 (describing the mediation activities of sages and wise men).

30 See LITTLE HOUSE ON THE PRARIE, (NBC 1974-83) (Television Series) [hereinafter "Little House"]. For more information on the Little House Series, visit http://www.angelfire.com/tx/LittleHouse/.

31 Police are paid for a number of duties, clergy must provide for multiple needs of their congregations, and I hardly recall a Little House episode where Mr. Ingalls was paid to resolve a dispute (although I’ll be the first to admit that I did not see all of the Little House episodes.

32 See MURRAY, ET AL., MEDIATION AND OTHER NON-BINDING ADR PROCESSES 75 (1996) (describing early activities of the Labor Department).

33 This Note does not review the historical activities of diplomats and military negotiators because these professions did not involve everyday disputes between citizens.

34 343 U.S. 579 (1952).

35 In this case, President Truman attempted to federalize the owners of steel mills in order to compel striking steelworkers to continue their employment. The specific reason for this nationalization was the "fail[ure]" of the FMCS to achieve resolution. Id. at 582.

36 See About FMCS, available at http://www.fmcs.gov/aboutfmcs.htm (describing the variety or roles currently facilitated by the organization).

37 While it is true that the Ford Foundation began to explore the concept of mediation in the late 1960’s, these pilot programs, which were enacted through the American Arbitration Association, are not recognized as catalysts for a national movement. See KOVACH, supra note 23, at 28 (describing the Ford Foundation’s activities); MURRAY, ET AL., supra note 32, at 77 (noting programs that developed in the 1960s "under the impetus of federal grants under the poverty and other Great Society programs").

38 See Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice (1906), reprinted in 20 J. AM. JUD. SOC’Y. 178 (1936) (describing the need for alternatives to the traditional adversarial legal approach).

39 For a synopsis of the Pound Conference of 1976 see Davis, supra note 7 (same).

40 See Frank E. A. Sander, Varieties of Dispute Processing, 70 F.R.D. 111 (1976) (describing the concept of a Multi-door courthouse).

41 This result has caused much debate in legal circles regarding who should ultimately regulate mediation qualifications. See Kimberlee K. Kovach, What Is Real Mediation, and Who Should Decide? 3 DISP. RESOL. MAG. 5, 6 (1996) (discussing how many view mediation as an extension of the legal system because judges are responsible for recommending it).

42 See Adler, supra note 6, at 47(noting the aim of neighborhood mediation centers in the 1970s to "get away from lawyers, judges, courthouses and all other parts and pieces of a justice system that too often seems to be a kind of giant, ponderous, costly, friction-generating tar baby").

43 See FED. R. CIV. P. 16 (b) (7) (providing new alternatives for reaching settlements in pending cases).

44 See generally Bruce C. McKinney, et al., A Nationwide Survey of Mediation Centers, 14 MEDIATION Q. 155 (1996) (confirming that few mediators in neighborhood mediation centers are paid for their services).