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University of Missouri School of Law
Kisthardt, Mary Kay

Mediation Theory & Practice


I. Historical Context & Conceptual Framework
A. An Introduction
1. Definition:

Three of mediations essential features must be underscored in order to understand its history:
1) A mediator has no preference for what the parties’ settlement terms shall be
2) A mediator has no authority to impose a binding decision on the parties
3) Parties do not reach compete agreement in mediation unless each party accepts every settlement term.
2. Historical Perspective
B. Mediation: The Foundational Years of the 1960s & 1970s
1. The Challenges
Beginning in the late 1960s, people used mediation to resolve many different types of controversies. See examples below.
a. A Hot City Night
Officers injury people in a riot; community outraged & want to have a mass demonstration
b. Not in My Backyard
Half-way house for mentally-challenged adults wants to open in the neighborhood
c. Neighborhood Citizenship
Party house bothers the neighbor
d. Working for Local Government
City workers, upset with working conditions, seek to form a union & then strike when city won’t allow it
2. The Existing Repertoire of Responses
a. Overview
The fundamental drawback to using our traditional legal & political processes to meet each of these challenges was identical: The parties most affected by the matters in question were not able to discuss the concerns that mattered most to them w/ the persons or institutional representatives who were in a position to effectively address the matter.
b. Hot City Night / Not in My Backyard
c. Neighborhood Citizenship
d. Working for Local Government
3. The Grand Experiment: Using Mediation as an “Alternative Dispute Resolution Forum:
a. Introduction:
b. Community Conflicts:
Congress created the Community Relations Service (CRS) of the IS Department of Justice under the 1964 Civil Rights Act, a unit whose purpose was to recruit, train & deploy persons skilled at developing & advancing the use of conciliation & mediation to resolve controversies in which racial & ethnic tensions pierced the environment. (De-segregation cases and Klu Klux Klan cases). Its mandate, then & now, is to foster dialogue & bargaining among parties in interest to work out mutually acceptable settlement terms.
In the private sector, the Ford Foundation & the William & Flora Hewlett Foundation assumed the leadership role in providing substantial financial support to non-profit organizations dedicated to experimenting w/ the use of mediation to resolve these social conflicts.
What energized experiments was a common vision that structured participation by disputing parties enhanced the dignity of citizens’ lives & cemented their perspectives as democratic partners, that dialogue engendered accountability, & that accountability was the foundation for unleashing citizen imagination to design & implement effective relationships, programs, & institutions.
c. “Minor Disputes”
To respond to interpersonal disputes among neighbors, many court systems created & experimented w/ using volunteer citizens to mediate such cases. The approach was simply described: Bring all neighbors into a room. Have them meet w/ one another in the presence of a community resident trained in conducting problem-solving dialogues. Try, through discussion, to have the parties discuss their concerns, communicate their aspirations, & work out arrangements acceptable to each. (i.e. AAA, 4-A, CDS, NJC)
d. Public Employment: State & Local Government
The most explosive growth occurred here. Public Employment Relations Boards (PERBs) or Public Employment Relations Commissions (PERCs) were established to oversee the implementation of collective negotiations among state & local government personnel, & included the implementation of impasse procedures, including mediation, that parties could use to resolve their disputes.
4. Lessons & Legacies of the Foundational Years
a. Practice:
Five Reasons for why mediation was ideal when used to address a broad range of disputes:
1) It permitted stakeholders to the controversy to establish the discussion agenda
2) It was an inclusive process, permitting participation not only by trained advocates but also those persons or organizations which had to abide by the resolution;
3) It required persons to be accountable for designing solutions to problems not just complaining about them;
4) It supported the belief, later to be substantiated empirically, that meaningful, direct participation enhances participant respect for the fairness of the process & strengthens participant compliance w/ negotiated outcomes;
5) It appeared to be both a harmless & minimally costly process. Additionally, non-lawyers advocated its use more than lawyers.

b. Policy:
Three important themes emerged from the early developments:
1) The central emphasis was on the negotiation process rather than a trial;
2) persons recognized that the “value-added” of the mediation process resided in the mediator’s neutrality; &
3) mediators were individuals drawn broadly from the community who reflected a diverse range of professional training & life experiences.
c. Professional Development
i. The Society of Professionals in Dispute Resolution (SPIDR)
Established in 1972, to promote dialogue, study & education among practitioners was needed. SPIDR was created to satisfy this need.
ii. The Special Committee on the Resolution of Minor Disputes of the ABA
In 1977, the ABA created this special committee to study the growth of court-annexed citizen dispute settlement programs.
iii. Scholarship
Dispute Resolution scholarship from WWII through the 1970s focused on analyzing DR processes operative in private sector labor-management relations & was conducted largely by economists, political scientists, psychologists, industrial relations scholars & concentrated on studying the dynamics of collective bargaining, not mediation. Legal focused on interplay b/w courts & arbitration processes, especially in union-management.
C. 80s: A Decade of Program Stabilization & Expansion
1. Introduction
Mediation’s use during this decade spread in several ways, mostly targeting activities att the state and local level. Successful experiments were transformed into permanent components of the social justice system, & mediation’s use extended to new arenas. w/ each of the developments, new questions about process use & service delivery arose.
2. Program Stabilization:
Program evaluation of dispute resolution projects generated three important consequences:
1) for successful experiment, program advocates focused on developing strategies to stabilize the program’s status &, in appropriate ways, to incorporate it into the justice system;
2) program advocates encouraged the replication of successful projects in other jurisdictions; &
3) for experiments that failed, practitioners tried to distill the lessons so that mediation’s use in new
substantive arenas would be informed by those lessons. Only community disputes struggled in the financial front.
3. Expanded Areas of Practice:
The practice of mediation expanded in 2 different directions during this decade: One direction embraced controversies involving groups & public agencies; the other was focused on individuals.

Public Disputes

In 1980’s difference was public agency was party to the controversy. Disputes arose among gov agencies at various levels and between gov parties and private parties (about how fed money should be spent).
The Kettering Foundation funded an experiment in which negotiations b/w Federal, State, & Local officials were mediated by selected individuals. The projects were wid

nd 70’s qualifications based on life experience but now a push towards professional training and degrees. Limits diversity of mediator pool.
ii. Ethical Standards- with more private mediation practices, greater need to articulate ethical standards.
c. Professional Development
i. Professional Organizations & Activities
a) The Society of Professionals in Dispute Resolution (SPIDR)- growth in membership and activities reflected mediation’s expanding range of activity. Local chapters.
b) Other Professional Organizations- Academy of Family Mediators – was created to monitor and establish performance standards for family disputes. Community Dispute Resolution Centers- formed statewide coalitions to share information and adopt strategies. Bar Associations –established committees to explore and monitor mediation’s growth in respective jurisdictions.
ii. Scholarship: (Scholarship transformed practice in 80’s)
a) Theory Centers
The William & Flora Hewlett Foundation provided leadership & financial support to create Theory Centers in Dispute Resolution. Goal was to move field beyond shared experiences to understanding basic structure and values of field. The Foundation’s committee provided financial support to a limited number of universities with groups of scholars interested in analyzing conceptual & theoretical aspects of dispute resolution processes from multiple perspectives.
The Program on Negotiation (PON) containing faculty from Harvard, MIT, & Tufts University, was created w/ this Hewlett Foundation support & remains, perhaps its best known center. Among the work products of PON was a book on negotiation authored by Roger Fischer & William Ury entitled, Getting to Yes. The book introduced the concept of “principled” or “interest-based” bargaining. PON wrote other books which became standard material for mediation.
b) Legal Scholarship
Ohio State University & the University of Missouri-Columbia School of Law both engaged in thorough study of ADR, to include mediation. Implemented the nation’s first clinical mediation programs using law students as mediators. Each school also began their own dispute resolution journals which are resources for scholarly commentary.
b) Degree Programs
Advanced degree programs in conflict resolution emerged. George Mason University established the first doctorate program offered through the newly established Institute of Conflict Analysis and Resolution (ICAR).
D. 90s: Mediation & Democratic Governance
1. Overview- mediation expanded to federal government.
2. The Role of the Federal Government
a. Overview
b. Federal Agencies
In 1990, Congress passed two laws affecting the use of ADR processes in federal agencies. 1)Negotiated Rulemaking Act established a framework whereby a federal government agency responsible for issuing various rules could engage a neutral third party intervener (mediator) to facilitate rule-development. 2)Administrative Dispute Resolution Act in 1990 authorized each federal agency to consider using various dispute resolution processes, including mediation, to resolve any of the multiple issues that constitute