One day last year, in the midst of the pandemic, those of us in the Bay Area experienced a day like no other. The sun never came up. More accurately, because of an extreme climate event in Northern California, the sun was obscured by the dark smoke of forest fires raging throughout the state.
I remember that day distinctly. I was performing a pre-mediation site inspection at a high-rise building in downtown San Francisco, standing on a rooftop deck, and looking out across the City. An eerie orange glow extended as far as the eye could see. Pedestrians walking the streets below wore face masks and headlamps, as they attempted to go about their daily routines. Was this surreal moment a view into an apocalyptic future?
Fast forward a year. The recently concluded COP 26 Climate Change Conference in Glasgow, Scotland has refocused the world’s attention on the growing climate emergency. Headlines announce that we are rapidly approaching a tipping point in our human story.
This new reality has caused many in our profession to ask ourselves, “What can we do as mediators to impact climate change in our practices? How can we contribute to the discourse on this existential issue?”
Opportunities to engage and facilitate
I believe that mediators can help by doing what we do best: look for opportunities to engage in, if not facilitate, difficult conversations. The topic of climate change and its threatened impact on weather, future pandemics and mass migration is often too frightening or overwhelming for people to meaningfully engage. All too often, when the topic does arise, it’s accompanied by recriminations or guilt, based on historical misdeeds or inaction. As mediators, we are keenly aware that fear-based discussions or accusatory language is not productive toward eliciting changes in behavior. Climate change discussions should, instead, help us engage in civil discourse that is freed from the past and focused on immediate action.
An invitation to climate action
Beyond mediating difficult conversations, what does an invitation to climate action require from each of us? The answer lies in examining our personal and professional behaviors and making changes, perhaps incremental at first, that will impact our collective future.
For many mediators around the world, widespread access to Covid vaccines has brought the opportunity to return to the workplace, and with it, a conversation about what the “new normal” should look like. The conversation is typically framed as a debate between the value of in-person mediation versus the ease and flexibility of remote or virtual mediation. On the one hand, the discussion focuses on the success of our profession’s forced marriage to technology and mediation results that have exceeded everyone’s expectations. On the other hand, many mediators lament the lack of personal connection, which lies at the core of what called them to the profession in the first place.
What is often conspicuously absent from the conversation is any mention of the importance of environmental considerations in deciding what will be the new normal. For example, it took a gentle inquiry from my friend and colleague John Sturrock, a leading mediator in Scotland and champion of the mediator’s “Green Pledge,” to help remind me that environmental considerations might well be the single most important criteria in making decisions about how and when we return to the workplace.
To illustrate the point, at a recent meeting within my company, an accomplished mediator reported that prior to the pandemic, he drove almost 30,000 miles each year, traveling to and from mediations. He went on to say that his recent success using virtual mediation has made him reevaluate the need for in-person mediation. My own experience has been similar. Previous to the pandemic, I routinely boarded airplanes or drove hundreds of miles every week. Success rates aside, I am now looking at that experience through an entirely different lens. If one multiplies my pre-pandemic carbon footprint by the number of attorneys, clients, experts, and others who routinely joined me, it’s easy to see the opportunity for potentially profound change.
What, then, are the specific changes we could make in our daily behaviors as mediators, which when magnified across our profession, can add up to significant climate impact?
1. Reduce travel.
Recently, I was on a panel with mediators from around the world, discussing the impact of virtual mediation. The overwhelming majority of panel participants had made up their minds to not return to in-person mediation. They underscored the many benefits, for mediators and participants alike, of conducting mediation on a virtual platform without needing to travel. For many of us who entered this profession because of a strong desire to work closely with those in conflict, however, the idea of never returning to in-person mediation is anathema. Fortunately, this debate is not binary. Whether in-person mediation is essential should depend on the unique aspects of the dispute. The need for climate action suggests that the default decision should be to avoid travel for mediation, whenever possible.
2. Reduce or eliminate paper.
Years ago, a mediator in the United Kingdom reported that he was running to catch a flight to attend a distant mediation when he realized the weight of the mediation briefs and accompanying exhibits in his briefcase made him feel that he was dragging an anchor through the airport. Soon thereafter, he switched his office to entirely paperless and required that all mediation submissions be done electronically. Only later did he realize the climate benefits of his decision. Mediators needn’t make an “all or nothing” decision about the use of paper. I can say personally that the decision made by my company to establish a portal for the electronic submission of documents has undeniable benefits, including saving the environment.
3. Encourage contract clauses that favor/permit virtual mediation/arbitration.
So often. once a conflict arises, every decision can become a moment of contention between disputing parties. Why not encourage the use of virtual processes that limit travel and save costs from the very beginning by putting language to that effect in contracts? Then, when disputes arise, parties are directed in advance to adopt sustainable forums for dispute resolution.
4. Consider offsetting your carbon footprint.
Several mediators I’ve talked with have decided that whenever they conduct a mediation in person, they will commit to an action to offset the carbon impact of that decision. Not everyone needs to sign up for Greta Thunberg’s Fridays for Future, but there are many and varied ways to pursue a “net zero” impact on the planet. If you have a teaching opportunity, share the messaging. If you prefer to make a donation, worthy climate-focused charitable organizations abound. Whatever your course of action, strive for behavioral changes that are both realistic and sustainable.
5. Sign the Mediator’s Green Pledge.
The World Mediator’s Alliance on Climate Change offers a “Mediator’s Green Pledge.” Inspired by a similar effort by arbitrators, it secures a commitment to the concrete steps each of us can take to reduce the impact on the climate of each mediation we conduct. By signing the Green Pledge, one commits, wherever possible, to behavioral changes that help lead the way to carbon neutrality.
We are at an inflection point in our industry.
The 13th-century Islamic scholar and Sufi mystic, Rumi, once said, “Yesterday I was clever, so I wanted to change the world. Today I am wise, so I am changing myself.” Most change begins with individuals. Small incremental decisions in our lives and practices can have a cumulative impact. Decisions around when we travel, the food we eat, even the clothes we wear, have an environmental impact. As mediators, we are uniquely positioned to influence and inspire others by our decisions. Don’t overlook the opportunity to be the catalyst for change.
How each of us chooses to carry forward the lessons of the past twenty months into a post-pandemic world will have profound consequences for our profession and our world. Hopefully, the environmental impact of our decisions will play an important role in that conversation. The time for climate action in our personal and professional lives is upon us. The opportunity to reevaluate our approach to mediation has never been more consequential. Only by considering the impact of our individual behaviors on our environment can we ensure that there will be abundant sun-filled days for future generations.
