ADR SPOTLIGHT - Volunteer vs. private mediator: Can't we just get along?

By Joe Basta

Convene a gathering of private, for-pay mediators to discuss the prognosis for their future and their conclusion is likely to be  “guarded.”  Informal mediator surveys and anecdotal evidence suggest that perhaps 20% of private mediators garner 80% of the business.  Some senior lawyers who took 40 hour civil mediation training over the past decade thinking ADR would be the next cottage industry providing a soft retirement landing have dropped out of the mediation game in disappointment.  Trainings seem to proliferate but paying engagements are few.  Adding to this tension is increasing use of the Community Dispute Resolution Program centers which rely on a strong cadre of volunteer mediators—many of them non-lawyers—to service their clients.  What’s a private mediator to do?  How might the mediation community at large divvy up the mediation pie and expand the pie at the same time?  Let me offer a few suggestions.

I start with two premises: First, the mediation pie is not fixed but dynamic and expanding.  Spend 30 seconds watching or reading news media and you will see no end to human conflict in need of peaceful resolution.  We clearly are in very short supply of people who know how to have “difficult conversations,” to reach  “yes,” and to get past “no.”  Second, short of one-on-one negotiation, mediation (whether facilitative or evaluative) should be the mechanism of first resort for resolving all conflicts, whether they originate in court or not, and for obvious reasons: speed, economy, confidentiality, flexibility, and autonomy.  We get better, more lasting results when we solve our own problems rather than permit others to impose their solutions upon us.

In 1988, the Community Dispute Resolution Act created local program centers “to provide conciliation, mediation, or other forms of voluntary dispute resolution to persons as an alternative to the judicial process.” MCL 691.1553.  The Act permits courts to refer disputants to the centers, and many courts do just that.  Center volunteers mediate all manner of controversies: small claims, merchant/consumer, landlord/tenant, domestic relations, probate, and general civil.  The State Bar of Michigan’s Pro Bono Initiative, which now permits attorneys to get pro bono credit for volunteer mediation, likely will bolster the ranks of volunteer mediators at the CDRPs.  According to the Office of Dispute Resolution, which administers the Community Dispute Resolution Act, 18 centers located in counties throughout the state, including the most populous, served more than 30, 000 clients in 2013.  But the Act—in dictating services to “persons”—does not limit services to the poor, other than to make funding contingent in part on providing services at no cost to the indigent and to commission the centers to “respond to local community needs.”     

Some centers by strategic plan, vision statement, or by-laws focus explicitly on low and moderate-income clients, but otherwise the centers have no economic strictures on whom they serve.  The result is a statistically undetermined number of clients coming to the centers who are represented by counsel and who are not low income.  Clients whose cases are complex or financially significant enough to warrant hiring counsel should seek private, not volunteer mediators.  That is likely to be the case with virtually all large corporations involved in litigation.  Referring courts also should direct cases where the parties have counsel to private mediators on their rosters or to those of the parties’ choosing.  The courts and the centers can easily distinguish cases based on amount in controversy and the presence of counsel, permitting the centers to accept cases only where litigants are represented by legal services’ attorneys.  Center resources are better spent maintaining and developing programs for the underserved in their communities.  Private mediators stand ready to help the rest.

A corollary to routing disputants as suggested here is to streamline the process for certifying and identifying qualified mediators. Rather than maintain the circuit-by-circuit patchwork of mediator registrants, we should publish a statewide roster of all mediators who have undergone basic training, completed an internship, and who regularly take advanced training to sharpen their skills.   Biographical information would also help disputants select the right private mediator.  In any event, training and continuing qualifications should be the same for all mediators, whether those working in the CDRPs or those on the current circuit court rosters.  There is no justification for requiring continuing ADR education for mediator roster status among the circuit courts but not for mediator service to the CDRPs.  Uniform, statewide standards for mediators will ensure quality of service to all disputants regardless of income level. 

Routing disputants—whether rich or poor—to the qualified mediators best positioned to help them will lead to even better results, more satisfied clients, and thus more future mediations as word of mediation’s effectiveness spreads among the populace and the organized bar.  The mediation pie will be more cleanly divided and enlarged at the same time.  What’s not to like about that?

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Joe Basta is president of Basta Resolutions PLLC, a private mediation firm.  He formerly served as president of the board of The Dispute Resolution Center, the Community Dispute Resolution Center Program serving Washtenaw and Livingston Counties.  Basta was a trial lawyer at Dykema Gossett for more than 34 years, litigating a wide variety of complex commercial matters before focusing exclusively on mediation work.