I read with interest Angela Bilbow’s article, Mediation: The Unsung Hero (link below) and think it important to comment on the countervailing themes of international developments favoring commercial mediation and the perceived underutilization of mediation as a dispute resolution option. Having taught recently in Turkey with one of the Brick Court Chambers symposium members, John Sturrock QC, and witnessing first hand my own company’s strategic alliance with the Shanghai Commercial Mediation Center I can attest to concrete examples of growing interest in commercial mediation worldwide. I have just returned earlier this year from teaching mediators in Vienna and Mexico City and have further anecdotal evidence of this growing interest. How we manage these growth opportunities in developing markets by offering our shared experience tempered by cultural sensitivities is a broader discussion. What troubles me more is the push back by end users of commercial mediation services, particularly those who object based on cost.
As one who has been mediating commercial disputes almost every day for thirty years, I am no stranger to the many objections raised by would be participants. Indeed, one of the lighter moments in mediation training is when we ask participants to list all the objections to mediation they have encountered in their careers before we explore strategies for response. For the most part, those objections based on perceptions of weakness or game playing by participants, I believe, can all be appropriately put to rest by a skilled mediator addressing the underlying interests of the participants. Most troubling still is the perception by some that mediation is still too expensive. I once saw an advertisement that began, “troubled by the effects of old age, consider the alternative”. To a very real degree, the same sentiment should apply to mediation, meaning that the true measure of the added value of mediation isn’t measured in the hourly fee paid to the mediator but in the cost of conflict to the individual or organization involved.
I’m currently involved in teaching mediation competency skills to corporate management and the heads of physicians/nurses at Stanford University Hospital. One day over lunch I asked the CEO to identify a real problem confronting his staff including one that occupied a meaningful amount of his personal time. I then asked him to attempt to quantify the cost of that conflict by itemizing the time and dollars spent after calculating the overall cost to the organization. After attempting some rough approximation of actual costs to the organization, I then prompted him to consider the lost opportunity costs associated with that conflict. In other words, what could each of those individuals involved, himself included, have worked on had they not been otherwise focused on that one conflict. When compared to the cost of intervention by a skilled mediator, the results were obvious.
The challenge as I see it is we need to help develop more accurate metrics allowing us to measure the true cost of conflict to individual and organizations, enabling decision makers to truly evaluate the relative costs of available options. While this effort is imprecise in many respects, it’s the overall trend that will prove instructive. Moreover, as a profession, we need to continue our efforts to better educate a generation of leaders and business decisions makers about the benefits of the commercial mediation process. And that begins by claiming value in those instances when mediation has proven successful in resolving conflict. Until then, we will continue to have professional discourse which is tantamount to rearranging the deck chairs on the Titanic. We need to stay focused on redirecting the course of the ship. (link to article: http://www.cdr-news.com/categories/singapore/6394-mediation-the-unsung-hero
Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.