from The Boston Business Journal, June 13-19, 2003, page 32

Mediation Inflation
Alternative dispute resolution grows in popularity

Jeffrey Klineman - Special to the Journal

The equation is pretty simple: The longer you spend in court, paying a lawyer, the more your victory -- or your loss -- will cost you. 

From a straight dollars-and-cents perspective, that reasoning goes a long way toward explaining the continued growth of mediation as an alternative to litigation when it comes to solving disputes. 

That also explains why the New England chapter of the Association for Conflict Resolution has grown from just a handful of firms in the early 1990s to a membership today of more than 600, with about 280 of those firms based in Massachusetts. 

Experts put two reasons behind the growth in the number of firms that specialize in mediation (as well as other forms of what is known as "alternative dispute resolution"): the need for less expensive alternatives to prolonged court cases and the increased familiarity with mediation on the part of lawyers and their clients. 

"People are seeing that mediation is effective. It's cost-efficient, and it gets results," said Chuck Doran, the founder of Mediation Works Inc. "Given that mediation allows both parties to craft a solution based on their own interests, it's an empowering, party-driven process." 

During mediation, parties in conflict attempt to negotiate a solution under the eye of a "neutral" -- often a specially trained lawyer or retired judge, but they come from all walks of life -- who is skilled at facilitating agreeable settlements. 

Businesses have found mediation to be a low-cost alternative to employee and consumer disputes. The mediation industry has also gotten a shot in the arm through a procedural requirement that attorneys in all civil cases filed in Massachusetts inform their clients of the possibility of resolution through alternative means. Mediation and arbitration are the leading forms of those alternative means. 

The courts don't have firm figures on cases that go to alternative resolution. However, Patrice Slater, the administrator of alternative dispute resolution for Superior Court, estimates that 30 percent of the civil cases that are filed in Superior Court go into mediation. 

While the Trial Court cannot track the numbers exactly, Timothy Linehan, the Trial Court's alternative dispute resolution program coordinator, believes that the practice has reached the point where it perpetuates itself. 

"I would think Rule 5 (the procedural requirement that lawyers tell their clients about ADR) has been a component," Linehan said, "But clients also are aware of ADR, they are used to it, and they are doing it again and again. And lawyers are graduating from law school with experience and awareness of mediation, and they are using it." 

Parties see it as productive, according to Robert Mnookin, a Harvard Law School professor and the director of the Harvard Negotiation Research Project. 

"When disputants can resolve a conflict through negotiation, there can be a cost savings, and they can agree to elements of a deal that no court would ever impose," Mnookin said. "The relationship may also be repaired, or it may at least cut down on damage to that relationship." 

Mnookin said that Harvard's training programs for mediation have long waiting lists that are driven by attorneys who want to learn to mediate disputes, as well as by those who want to learn to represent clients during mediation episodes. 

The business of training mediators is growing as quickly as the practice of mediation itself, according to Brian Jerome, founder of Massachusetts Dispute Resolution Services. Jerome said that a certain amount of practical experience in law or a related profession is important. (It's "not a young man's game," he said.) 

Its popularity as a profession is due to its solution-oriented nature, according to Mnookin. "Mediation, although very challenging, is very gratifying work," he said. "You're helping people solve problems and avoid conflict. It's at a point in their career when they no longer want to be courtroom advocates." 

With the increase in popularity of mediation as a way to resolve disputes, a dispute has risen concerning the qualifications of those who can practice it in the courts. While the Trial Court has managed to put in place a list of available private mediators to whom interested parties can be referred, it has yet to adopt a final qualifying standard. A Trial Court commission has been hung up on two matters, according to Superior Court Judge John Cratsley: whether experienced mediators with no formal training should be qualified and whether individual branches of the Trial Court can require mediators to have certain kinds of licenses or qualifications in relevant fields of expertise --particularly law. 

"It gets complicated, because there are some professions that want to have the work exclusively," Cratsley said. "There are others who feel this kind of work is so unique that no one profession has a monopoly on a specific kind of talent." 

The Supreme Judicial Court is expected to decide on the final set of qualifications this summer, once Cratsley's commission makes its recommendations. 

Meanwhile, the practice continues to grow, both within the court system and outside it, as businesses are calling on mediators to resolve -- or train their workers to resolve -- disputes between employees, between vendors and purchasers, and between staff and supervisors. 

"The growth industry, some people would argue, is private ADR," Jerome said. "For years, private mediation and arbitration was known by those who were intricately involved in the legal process, but over time the process has become more legitimately known. It's looked at by individuals, small and large businesses, government, the entire field has been lifted by the tide. The private ADR field, although crowded with providers, continues to attract clients. People are looking more and more to have disputes resolved outside the courts." 

© 2003 American City Business Journals Inc.

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