Printemps 2011 - ADR Institute of Canada

ing the quality and competency of mediators,at least in terms of requiring training.A few weeks later, the Association forConflict Resolution (ACR) published draftModel Standards for Mediation CertificationPrograms 8 and invited commentfrom its 4,000 mediator membersin (mainly) the US.I expect mediation service providersaround the world to collaborate and buyinto simple, non-bureaucratic and voluntaryhigh-level international competency,practice and ethical standards. I believemediators will see the huge value in seekingfeedback about their skills from usersand peers and have it condensed into anobjective summary by an independent personor institution for inclusion as a crediblepart of their profile. I expect users torely less on gossip and hearsay when selectingmediators and to focus much moreon user feedback summaries. This will applyfar beyond mediation to include almostall professional services.The Demand-Side – Userneeds are changingWhile real estate brokers recite the dogmaLocation, Location, Location, the mantraof companies, government agencies andothers that need to account to their stakeholdersis Outcomes, Outcomes, Outcomes.I have already mentioned the shift fromInputs towards more Outcome Based Educationby an increasing number of schools,universities and professional institutions,but ultimately it is the demand side thatdrives such changes.The legal profession, gatekeeper of mostdisputes, is changing as a result. What ProfessorJulie Macfarlane at the Universityof Windsor, Ontario so aptly describes asThe New Lawyer 9 is arriving onto the scene– pragmatic, impatient, creative, daring,solution and results-orientated, processintolerant,favouring (and skilled in) negotiation,mediation, collaborative practiceand restorative justice. Resumés are beingre-written.These New Lawyers are in the market forjobs in the world’s companies and governments.They are the ones that will increasinglybe running day-to-day dispute portfolios,instructing counsel their way andin so doing changing the practice oflaw. A different type of client is nowemerging, with new priorities, needs andexpectations 10 .Government austerity programs are trimmingthe cost of civil justice to the publicpurse, causing sharply increased judicialinterest in the resolution of disputes beforetrial. Almost mandatory mediation is justaround the corner.All this will fuel a rise in collaborative law,where counsel are instructed to resolve acase outside the courtroom but are expresslyexcluded from representing the clientin court should negotiations fail. Mediationwill be well-understood by the NewLawyers, who will typically have beenwell-trained in those areas at Law School,independently or in-house. They will bemore selective about the skills and attitudesthey value in outside counsel. They willexpect less legal analysis and more energeticoutcome orientation. They will havetools at their fingertips to determine whatresolution process to pursue, such as administeredor non-administered mediation,and will be adept at selecting the rightmediator – having been trained in that skill.This new breed is too impatient to wastetime asking for information; if what theyneed to know about a given mediator doesnot jump out of their screens in a convincingand credible way, they will simply lookto another mediator who provides that informationopenly. Institutions that restrictinformation access to certain visitors, suchas members who must login and providepassword details, or those that use outdatedweb tools, and mediators who do not offercredible and easily digestible and feedback,will be marginalized by many users.There will also be a rise in innovations –engagement of mediators in dealmaking,hybrids, inter-cultural intermediaries,counsel whose client is the deal, not aparty to it. The opportunities for mediationare immense.The way to predict thefuture is to invent itFor the future to leak out requires a cut intosome of today’s realities: an appreciationof the main drivers 11 , an assumption thatstakeholders on the service side (mediators,providers and trainers) will act in a waythat serves their short and medium terminterests in light of a changing market, andthat those on the demand side (users, adjudicators,educators and governments) willexpress their needs clearly. We can alsoassume that there will continue to be asteady rise in the incidence of disputes, anongoing user desire to rank outcomesabove process, and an ever more educatedand informed user base.Another reality is that mediation is a highlyfragmented field. Service providers are instrong competition. This inhibits properdialogue about the future and the ability ofthe main players to agree concrete goalsfor the field. Mediation, like any other endeavour,has its sceptics - those prematurelydisappointed in the future and unableor unwilling to change - as well asCanadian Arbitration and Mediation Journal38