Neither Technology, Nor the Supply and Demand for Mediators Are Threats to the Mediation Profession

At a recent conference, a speaker began extolling the virtues of technology for dispute resolution. Based on the audience’s reaction and questions, the presentation apparently conjured visions of artificial intelligence and online technologies, the so-called “fourth party,” combining to resolve disputes without human intervention. The audience raised concerns that there were already too many mediators for the amount of mediation cases, and feared technology would exacerbate the deficit. I found myself puzzled by this reaction on both counts – the state of technology’s capabilities and the volume of potential disputes.  

You Are Not Going To Be Replaced By a Robot

The first issue can be dealt with quickly. Technologists overwhelmingly view jobs that require creativity and social intelligence, which includes complex human communication and open-ended challenges, as the most unlikely to be displaced by technology, at least during the span of anyone’s current career. So it’s not surprising that the website,  www.willrobotstakemyjob.com assigns a “Totally Safe” ranking to dispute resolution professionals with only a 6 percent likelihood of displacement by robots within the next decade or two.  

ADR Notable is focused on developing tools for the human mediator to use in combination with the mediator’s social intelligence which computers cannot replicate. Our goal is to assist the mediator with technology that addresses the tasks computers do well, like capturing and storing information, managing business processes or providing the means for easy communication over distances. Technology has had very modest successes in fully resolving disputes without the intervention of the human “third party.” Those successes are generally limited to relatively simple cases where computers can assist with structured communications between parties able to act rationally, and can use historical data from a volume of similar cases to calculate and suggest potential outcomes. These technologies cannot employ social intelligence to help parties achieve acceptable agreements in more complex contexts. 

The second half of the audience’s concerns was just as puzzling to me. How can it be that in a society that feels wrought by discord on a daily basis, mediators feel as though there isn’t sufficient demand to support the profession?  

It’s a Marketing Issue, Not Supply and Demand 

Mediators, arbitrators and judges are all in the dispute resolution business, using differing means to deliver the service. So a good measure of the demand for dispute resolution services is the statistics for court cases. Data from 2018, the most recent I could find, says that there were about 83.8 million cases filed in the state court systems (excluding federal courts) in the United States. A little over half were traffic related, leaving about 40 million civil and criminal “disputes” to be resolved. Focusing on civil cases where, notwithstanding the inroads of restorative justice, mediation has typically played a greater role, there were about 16 million civil cases filed in 2018, and the trend for 2017 and 2018 was slightly upward from a trough in 2016. In this report, not all states could provide detailed breakdowns by every type of case, but those that could offer interesting information. 

• All states estimated 4.8 million domestic relations cases (divorce, civil protection orders, custody, support, paternity, adoption and other)  
• 22 states reported about 3 million contract cases

• 30 states reported more than 700,000 probate/estate cases 

What these numbers say is that the demand for dispute resolution services is plentiful. The problem for mediators is that too many disputants still default to the judicial system for resolution or otherwise fail to choose mediation. Ironically, 97 percent of civil cases filed don’t make it to a trial – they are dismissed or settled by other means, often after incurring the costs of the litigation process. Mediators need to make the case to the consumers of dispute resolution services that private mediation is the place to start, and that a courtroom should be viewed as a last resort. Given the costs, uncertainty, lack of control, delay, stress, distraction and effort for compliance with discovery and trial preparation, it doesn’t seem like a high bar to move the dispute resolution starting line from the courtroom to the conference room.  

Some court systems agree and are beginning to help. Last year, the New York State Unified Court System implemented “presumptive ADR,” a program in which parties in a broad range of civil cases, including commercial disputes, would be referred to either mediation or some other form of ADR as an initial step for most lawsuits filed in New York State courts. In accepting the Law.com/New York Law Journal award for innovation this month, recipient Lisa Denig, from the Office of Court Administration described the impact. “[W]hat I am most proud of is the shift in attitude, in the culture of civil litigation that is now prevalent among judges, court staff and the bar. No longer is it simply accepted that settlement or mediation won’t be explored until after years of discovery, enormous cost outlays and only on the eve of trial. Now attorneys come prepared—at the preliminary conference—to discuss alternative ways to resolve their case. Just the other day, a law clerk in the courthouse caught me in the hallway to tell me that the attorneys who appear before his judge now instinctively know that they will be asked to mediate and they are becoming quickly familiar with the process and the list of mediators!” 

There are also lots of resources on “how to market myself as a mediator”. The quoted search phrase had nearly five million hits on Google. The point here though is that the line of least resistance to finding new clients is not marketing yourself against other mediators, it is marketing mediation as the best alternative means of resolving a dispute.