Printemps 2011 - ADR Institute of Canada

visionaries and leaders who have alreadybeaten a path through uncharted territory,appreciated that the future belongs to thosewho prepare now, and are willing to pursuebigger targets in the absence of an overallprofessional mission.This balkanized field is pulled in differentdirections, unsure whether it is a branch oflaw or psychology, an art or science, ADRor negotiation, and whether it needs a philosophy,a theory, values, characteristics,practices or all or some of these things. Tocontinue the debate but stop the dithering,mediation needs strong, well-funded, nonhierarchicalnon-service-providing professionalbodies, founded on the principles ofServant Leadership 12 as explained by theorganizational guru Robert K. Greenleaf -in this case establishing and transparentlyimplementing high training and practicestandards, objectively explaining and promotingmediation to users, convening allstakeholders, making information freelyavailable, encouraging thought leadershipand best practices, developing and disseminatingtools, and convincingly inspiringmediation’s growth.Conspicuously, such bodies will be run notby practicing mediators, providers or trainers,but by full-time managers, drawing onsupport and contributions from both thedemand and supply sides. Governmentshave an interest as a user and a vital role inproviding credible seed funding so that thenew profession is not perceived as purelyself-serving.Once established, these professional institutionswill be empowered to establish highstandards, disallow mediocrity and ensuretransparency. They will apply, as ProfessorSander has already predicted, strictstandards for trainers. Independent assessmentwill become a key part of those standards.While many mediators will be lawyersby background, increasingly otherprofessionals will enter and enrich the field.By 2020, such bodies will have been establishedin most countries on a nationallevel, and will link to an international bodythat will help the profession to globalise.While mediation’s stakeholders addressquality, transparency and professional status,numerous other changes will occur.As the impact of communications technologygrows, small claims will typically becommoditised using ODR 13 . Mediators andproviders handling larger disputes andthose involving emotional issues willfind telepresence, online caucus roomsand other IT tools to make mediationsmore effective, attractive and affordable,reducing travel time and speeding up negotiations.As users become better informed abouthow and why mediation works, demand forless conventional, more tailored processeswill increase; hybrids of facilitative andevaluative elements, including early caseassessment and non-binding opinions, willgrow. Many trainers still teach a purely facilitativemodel of mediation, but mediatorsalso need to learn how, when andwhether to deploy evaluative and transformativetechniques as needed. Gradually,training will adapt to include these needs.More mediation panels will be process and/or subject-matter oriented, requiring mediatorsto demonstrate, in addition to theirmediation competencies, knowledge oftechnical fields, conflict diagnostics, processdesign and inter-cultural communications.Mediation will no longer be viewedas an alternative form of dispute resolutionand will elevate to become the primaryform. In the commercial arena, good conflictmanagement will be considered partof Good Corporate Governance and companieswill design their own systems forevaluating, managing and resolving disputes14 . A more informed and circumspectuser will emerge.Service-sidestakeholders will:• collaborate more on issues like training,independent assessment andfeedback• agree on, and apply, minimum highlevelquality standards• encourage transparency into mediatorcompetency and prior user experience• share technology platforms for ensuringsecurity and confidentiality• devise schemes to enable new mediatorsto gain experience and develop professionally• insist on rigorous ethical codes and independentreviews with sanctions, and• pool resources to promote mediation asa credible profession.Codes of Ethics will be re-drafted to sharecommon principles throughout the field.They will also be less legalistic and general.Ethics codes that are not subject toindependent review will be seen as meaningless;compliance panels will be associatedwith professional institutions, not provider,peer or voluntary practice groups.Users will expect every practicing mediatorto carry professional indemnity insuranceand to specify both the underwriterand extent of cover on their profile.Users will also want hard evidence of amediator’s skills to enable them to makeinformed decisions. Cherry-picked quotationsfrom (usually) unidentified users willlack credibility. Users will expect an independently-preparedsummary of prior userfeedback not only for reassurance aboutcompetency but to indicate suitability interms of style and personality. Mediatorsposting video clips of themselves explainingtheir resumés direct to camera or ininterview mode will secure more mediationassignments, as users become increasinglymeticulous and personal in theirchoice of mediator.As OBE becomes more prevalent, thosemoving into careers in professional firms,companies and governments will exhibit adifferent attitude to their predecessors,seeking specialist training in solution-providingprograms. Mediation trainers willaddress this market by segmenting theircourses; one-size-fits-all training programswill fade away. Those aspiring to becomeprofessional mediators will need more indepthtraining resulting in qualification andcertification, plus professional developmentfollow-up. Professional firms as wellas government and corporate users willdemand courses on representing clients inmediations; adjudicators and others willseek courses on the art of referring partiesto mediation; practicing mediators willwant courses on inter-cultural mediationand other in-depth practice areas. MajorLe Journal canadien d'arbitrage et de médiation39