What Mediation Is
Mediation is a negotiation process. Two spouses contemplating divorce work with each other and with a skilled professional, trained to help both of them mutually to resolve issues of parenting, property and support.

In a private, low-stress, neutral setting, couples negotiate an agreement cooperatively, rather than in a competitive struggle.

Unlike the adversarial process, neither party "wins" at the expense of the other. The goal of mediation is the development of a dissolution agreement created by and acceptable to both parties-one that is fair to each and is best for the children.

It is true that a judge must approve any settlement agreement during the dissolution hearing which takes place in court. And it is also true that independent legal counsel is required to prepare a legally binding agreement which reflects the results of the mediation process and to represent the parties in the court proceeding for the divorce.

Yet mediation itself remains as a distinctive conflict-reducing technique, enabling the settlement of disputes by bringing together the conflicting parties themselves in the presence of a disinterested third party. With the help of this disinterested third party (the mediator), the divorcing spouses are able to focus on the issues and to deal with them. The mediator intervenes continuously to allay the untoward emotional entanglements which would otherwise sabotage the bargaining process. Mediation gets the conflicting parties to communicate with each other, and to bring the best available information to bear on the questions in conflict.

The disputants are not committed in advance to conform to the opinions of the mediator, as they would be in arbitration or conciliation. In arbitration the findings of the arbitrator are binding. In mediation, the mediator merely attempts to facilitate the problem-solving process.

What Mediation is Not
Mediation is not the practice of law. It is a great advantage, of course, for the mediator to have been trained in the relevant law. The mediator should be apprised of laws relating to housing, health insurance, pension plans, and a variety of other topics. Yet the mediator does not provide his clients with information on such topics, the mediator never gives legal advice.

The mediator does not advise nor represent. To prescribe a course of action for the parties, or to champion the cause of one party at the expense of the other is totally contrary to the definition of mediation. Such a course of action would destroy the basis of any mediated agreement.

Similarly, mediation is not therapy. It is a great advantage for a mediator to understand the dynamics of therapy and its various techniques, dependence, and related topics. But the mediator has no right to find individual behavior "healthy" or "pathological," nor to convince clients to amend general patterns of behavior, nor to undertake searches for unconscious motives. The mediator is interested in therapeutic technique only in so far as it will help the mediator to help his clients focus on resolving the practical problems of restructuring their families and independently rebuilding their lives. Generally speaking the mediator's clients are not sick people; they are normal people facing many exceptionally distressing problems. If therapy is indicated, the mediator will refer out.

Mediation is not therapy. Mediation is not the practice of law.

Why The Distinction is Important
Mediation as a profession faces potential threats from two established professional groups: the established Bar and the various ranks of therapists.

Certain members of the Bar raise objections to mediation on the basis of professional ethics. -The ethics of law emphasize the adversarial relationship between the two parties, and the duty of the lawyer to press the advantage of his particular party with "zeal" and without remorse. It is presumed that the truth will emerge like a phoenix from the devastation wrought in trial by combat-a mechanistic, utilitarian presumption reminiscent of conservative, 18th-Century economics. It is also presumed-perhaps more precariously-that every quarrel has only two sides, or at least that every fight can be recast into a two-sided object (the interest of the children in a divorce action, for example, being somehow identifiable with the cause of either the husband or the wife, as in the traditional fiction that children are chattel property in whom an adult can hold legal title). To act as a mediator of a dispute writhing through a family network rather than as a champion of a stylized two-sided war (wherein God is on our "side." not theirs, if indeed there is any justice)... to act as a mediator clearly violates the right of each "side" to be "zealously defended." And this amounts to a brazen denial of due process, as guaranteed by the Constitution of the United States.

That's objection number one.

The second objection consists in the idea that mediation-this travesty of justice-amounts to "the practice of law." Who do these psychologists, psychiatrists, and even (a shudder) social workers think they are, trying to "practice law"? Who granted them their letters patent? Who administered their hazing? It wasn't the Bar; and that's unethical-because only the Bar can "authorize the practice of law." The practice of law is a monopoly, defined as such by the law. Mediators are upstarts.

That's objection number two.

According to the first objection, mediation would be all right if it weren't mediation but were rather the practice of law. According to the second objection, the whole problem with mediation is that it is the full-blown "practice of law": in other words, mediation might just be all right, if only lawyers were mediators, or if only the organized Bar or some auxiliary to it were handing out the licenses to practice (significant power accruing to whoever might grant such licenses or occasionally choose to snatch them away).

These two objections lie in contradiction so flagrant that it would be obvious to anyone other than a professionally socialized, two-sided thinker. The key to this contradiction lies in another dimension. It lies in what attorney Richard Crouch has perceptively termed "the danger" that an anti-mediation Bar might be perceived by the public as a "jealous profession" baring its canines at the edge of its "turf."

The question of authority-apparently justified power-is inherent in any discussion of professional organizations. It is a steady, unmistakable theme in any discussion of professional ethics. For there are at least two kinds of professional ethics. The first concerns "how to do the job right." The second concerns "who does the job." And above these concerns lie the questions "who decides how it's done?" and "who decides who does it?" This is the level where the power lies. But the entire system would collapse if the profession's intended clients were to perceive the profession itself with derision, as though the profession had nothing serious to offer, nothing worth paying for.

The first duty of any member of any professional group is not to be laughed at.

These remarks are not intended to deride the profession of law or legal ethics. All professions and all systems of professional ethics must deal with this sociological fact of life.

As Weber argued. "authority" consists not merely in the exercise of power but in the appearance of justification, the subjective acceptance of that power on the part of client populations. That's why the first duty of any member of any professional group is not to be laughed at: derisive laughter signifies the end of appearances, the end of apparent justification, and the beginning of the end of power.

It makes sense, then, for example, that members of the Bar are "ethically obligated" to report outrageous behavior by fellow lawyers (not to the public but to the Bar)-and are "subject to discipline" if they don't. Outrageous behavior-behavior unbecoming an officer and a gentleman-threatens the social bases of an organization's power.

So, similarly, lawyers are forbidden to practice together with therapists, especially within the context of divorce work. If a lawyer himself is qualified to act as a marital counsellor or therapist, then the lawyermust bill his time as law work, not as therapy. People might get the impression that a "marital counsellor/ Lawyer" was counselling divorce and thereby stirring up business or "soliciting" for himself.

The only way out of such problems is for the Bar to declare that interdisciplinary cooperation in the form of mediation simply is not the practice of law. This is the basic distinction we have drawn: mediation is something other than the practice of law. As a professional organization as a whole, the Bar would be well served by this distinction. But the unenlightened self-interest of certain segments of the Bar-fearing that mediation will do away with domestic unrest (with roughly as much justification as undertakers fearing that modern medicine might do away with death)have hindered the Bar from looking after its own good.

It is in the self-interest of the Bar as a professional organization to heed this distinction: mediation is not the practice of law.

And this is why the distinction is of importance to therapists, as well. If therapists fail openly to recognize the distinctiveness of mediation, then they immediately put themselves on a collision course with those elements of the Bar who would like either to co-opt mediation or to crush it, forcing it sideways as "law work" into the category of "lawyer's billable time." And there is a very good chance that lawyers would emerge as victors from such a conflict. And (many) therapists seem to know this or fear it.

So it is highly likely that the coming years will see the emergence of a new professional group, a national professional society for mediators as mediators, regardless of "disciplinary background"-if mediation itself in the meantime will not have been suppressed. A major, new professional organization is going to emerge as the result of problems inherent in older, established professional societies.

Mediation is not the practice of law. Mediation is not therapy. A new realm of power is at stake. That is why the distinction is important.

Natural Allies of Mediation: Judges
It's interesting that judges have been among the most significant allies which mediation enjoys. Perhaps this arises from the judges' knowledge that the role of the lawyer is not necessarily confined to that of champion or adversary. The role of the judge itself is not an adversarial role.

Or perhaps judges' tolerance of mediation arises from tradition. "Mediators of questions," as they were called, were helping to settle commercial cases as early as the Middle Ages in England. In the 1300's, their status was confirmed by statute (27 Edw. III, St. 2, c.24).

Or perhaps judges' interest in mediation arises from the structure of the profession and the realities of those judges' every day work. One of the primary realities of judges' work today is its sheer magnitude. Sanders (70 ER.D. 79, 111) summarizes Barton's findings (24 Stanf. L. Rev. 567, 1975) as follows:

If federal appellate cases continued to grow for the next 40 years at the same rate at which they have grown during the last decade, then by the year 2010 we can expect to have well over one million federal appellate cases each year, requiring five thousand federal appellate judges to decide them and one thousand new volumes of the Federal Reporter each year to report the decisions. Since the number of cases initiated in the federal system each year is approximately ten times the number of decided appeals, one can readily extrapolate Professor Burton's projections to the trial level.

And if one reflects on the fact that the county courts of the various state systems (where domestic relations cases are tried) have caseloads which dwarf even those of the federal system, then one begins to grasp the nature of the problem from the point of view of a practical judge.

And fear of some lawyers that mediation will destroy their business appears rather inappropriate.

Of course, judges could respond to the press of overloaded dockets in ways not involving mediation. If the judges in divorce divisions across the country were to multiply their numbers by several hundred percent, the backlog might disappear. But of course, this would diminish the exclusiveness of the judiciary itself. In domestic relations, a field enjoying scarce prestige among lawyers themselves, judges would be loath to diminish the prestige of their station by multiplying judges.

If the judges in divorce divisions in the various states were to simplify current proceedings even more radically than in recent years, the backlog might disappear similarly without recourse to the recognition of mediation. But then that would present the possibility that the entire divorce process would be demoted to the reahn of registration and administration, as in Japan, where litigation over such questions does not exist. Such a prospect can hardly excite judges, whose stock in trade, after all, is litigation.

On the other hand, if judges were to accept the results of mediated settlements, the number of cases in formal litigation would drop without crushing the demand for litigation, and would thereby maintain the position of the judiciary itself. Or possibly enhancing it. While successfully mediated cases would not need to go into litigation, judges must still approve the agreements reached by the parties in mediation when it comes time for the "prove up" (the court hearing in an uncontested divorce). Through their power to approve such agreements, judges have the prospect of implicit power over a broad new population, namely mediators (including not only attorneys, but also a variety of social scientists over whom judges have previously exercised no similar authority).

Faced with similar problems of overloaded dockets, judges on American criminal benches have adopted a structurally similar solution; plea bargaining.

Plea bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge. (Black's Law Dictionary, 5th ad., 1979).

The similarity between plea bargaining and divorce-related mediation ends with structural resemblance, however. Plea bargaining resolves the problem of overcrowded dockets in the criminal trial courts by encouraging settlements over which judges maintain power; but here the resemblance ends.

The critics of plea bargaining maintain that the laudable ends of efficient case processing are betrayed by villainous means. They hold that too often the accused sits months at a time in the most desperately degrading of prisons-victims of sexual and other violence-before the attorney shows up to begin the plea bargaining. When he appears, the attorney explains to the prisoner that if he is willing to plead guilty (and thereby forego his right to a trial before "a jury of (his) peers"), then his sentence at a summary hearing may just be equal to or not as much longer than the time the accused has already served. On the other hand, if the accused insists on going to trial in order to protect his innocence, he may have to sit in jail just as long or longer awaiting a trial at which he may well be found guilty, at which time he may be sentenced to a penitentiary for a period of many years. The accused, who generally is desperate, generally chooses to plead guilty. John Langbein, professor of law at the University of Chicago, calls this aspect of plea bargaining "the modern analogue to medieval torture." James Mills quotes Martin Erdmann, an attorney noted for his success in plea bargaining: "I have nothing to do with justice."

Mediation, however, has everything to do with justice-certainly with the parties conviction that justice has been done, certainly with what Curbs calls "the satisfaction of those concerned." In order to succeed, any system of dispute resolution "must give (even to) the losing party, and his friends and sympathizers, as much satisfaction as any loser can expect:" (C. P. Curtis, The Ethics of Advocacy, 4 Steal. L. Rev. 3, 1951).

In divorce, though one partner may be farther along than the other in his adjustment to the fact that the relationship is dead, there are no parties who do not consider themselves in some sense "losers." This is especially clear when fresh litigation arises after the decree of divorce has issued. Even ardent litigation attorneys are frustrated and dismayed by "post decree." Creating a sense of satisfaction-if fn no other sense, then at least in the feeling that the various inevitable losses have been fairly shared-is crucial in resolving disputes among by-gone intimates.

According to Jessica Pearson, director of a major federally funded study of the results of mediation in five states, mediation dramatically reduces post-decree litigation. The reason for reduced post-decree litigation is heightened satisfaction among the parties. The parties' satisfaction with the resolution of their divorces increases because the parties themselves directly bargain with each other and personally restructure their lives. The mediator is not a blind champion of any one "side;" the mediator facilitates the consideration and discussion of the goals to be accomplished by the divorce, and the various ways the parting couple can accomplish them. If the mediator succeeds in calming the static between the spouses and in providing necessary information and referrals, the couple themselves will come to an informed choice of their own, the couple will have a greater investment in the agreement itself. That's why mediation dramatically reduced post-decree litigation.

This is an infinitely more competent and humane way of clearing the dockets than plea bargaining could ever hope to be. Mediation is an appeal to good sense and enlightened self-interest-whose classical vehicle, of course, is contract.

The judges who support mediation either know all this or should know all this. In any case, mediation helps to resolve the problem of overcrowded dockets, perhaps the most serious organizational problem currently facing divorce-division judges. That's why judges are natural allies of mediation.

Other Natural Allies of Mediation: Lawyers & Therapists
It should be obvious from the foregoing discussion that not all lawyers nor all therapists can be counted among the friends of mediation. Far from it. On the other hand, not all lawyers nor all therapists are opposed.

First, there are those lawyers who do not specialize in domestic relations litigation, and who consequently do not imagine nor fear that mediation represents an economic threat to them. These are business lawyers, mainly, who are hesitant to get involved in the embroiled emotions which characterize divorce, and who probably wouldn't accept the proportion of divorces they do except as a service to business law clients who request them to do so. For this sort of lawyer, mediation offers a way around the nasty side of divorce. Moreover, when the mediation has produced a successful agreement, these lawyers stand to be asked to review the agreement on points of law, to do the drafting and filing, and to appear for the client at the summary hearing called a "prove-up." This is the kind of work that traditional lawyers are trained to do; successful mediation for clients may mean more satisfaction, fewer complications, and increased volume or at least a faster turn-over of such cases for lawyers.

Most lawyers should greet the news of such benefits with pleasure: there's no cause for lament in a solid, lawyerly job and a corresponding fee. Nevertheless, differing conditions in urban, suburban and rural areas will probably affect the attitudes of non-divorce-lawyers toward mediation.

Other characteristics influencing attitudes toward mediation would include the relative youth and the relative power of the lawyers, be they urban or otherwise. The coming of age of the baby-boom generation and dubious economic conditions have helped cause the number of lawyers to double. Many young lawyers in America today-like young lawyers in other countries in other times -feel relatively emarginated, and even disenfranchized. Women lawyers and many ethnic and other lawyers also consider themselves relatively emarginated, somehow disenfranchized. Many of the young and many of the traditionally emarginated display a positive interest in mediation. Maybe this is because X lawyers (name a group) have a natural inclination toward good feelings and common sense, since they have been so often and so long unjustly excluded. Or maybe this is because they view mediation as a new game, a new field to conquer, a new and less crowded hierarchy where they might more successfully claw their way to the top. Whatever the motivations, many young lawyers and many traditionally emarginated lawyers regard mediation with positive interest.

Many therapists and kindred people-oriented professionals face similar circumstances, as a result of which they also emerge as natural allies of mediation. Those who work for agencies have faced vast cutbacks due to the slow economy and the policies of President Reagan. Private practice-perhaps in family mediation-seems like an attractive option to quite a few.

The current wave of deregulation by the States is another reason why mediation looks good to psychologists and social workers. It appears that medical doctors have been lobbying for some time to convince State Legislatures to deregulate clinical psychologists and social workers. If clinical psychologists and clinical social workers are deregulated, they will no longer have State certification. If they no longer have State certification, insurance companies will no longer pay for their services. The only ones left with State certification would be psychiatrists, who are licensed as medical doctors; they would have the field of insurance payments all to themselves. This may account for the fact that far fewer psychiatrists than psychologists or social workers have displayed an interest in the emerging field of mediation.

In any case, those who qualify as natural allies of mediation include many judges, many psychologists and social workers, many lawyers not specializing in divorce litigation, many lawyers too young or too different to avoid being emarginated within their own profession, and a few creative and forward-looking divorce lawyers.

Mediation in Illinois
The professional society for mediators in Illinois began with a list of Illinois residents who had contacted O. J. Coogler, John Haynes, and their associates at the Family Mediation Association, then based in suburban Washington, D.C. Having researched mediation for a year and a half and having taken the training in mediation offered by the FMA, I was eager to find others back in Chicagoland who had taken the training and who might be interested in co-mediating cases for the sake of experience. To my surprise (and chagrin), nobody whom I contacted had done either. In fact, none of them seemed to be aware of the others existence.

I decided to call a meeting, and notified three judges in the divorce division of what I was doing. Close to thirty people attended that first meeting. It was an informative event. Everybody had a different opinion about just about everything. In fact, there was even confusion as to what mediation consisted in-though several present claimed not only that they knew what ft was, but that they had been practicing mediation for twenty and thirty years. And these included people who were unable to distinguish between the role of a mediator, the role of an arbitrator, and the role of a spiritual counselor.

Nevertheless, there was sufficient interest in organizing a professional society to foster the development of mediation, whatever definition might emerge. I drew up the papers necessary to incorporate the Mediation Council as a not for profit organization, procured the necessary signatures, and filed.

I consulted again with the judges just mentioned. I was pleased to learn that the Presiding Judge of the Divorce Division at that time, Charles Fleck, had decided to create a court-based mediation program. As presiding judge, judge Fleck had the power to assign cases to the remaining judges in his division. He intended to set a "mediation calendar" along side his conventional court case assignments calendar. He intended to inform the lawyers who appeared before him at his Tuesday and Thursday afternoon calls that mediation might be an option they should consider; and if the lawyers and/or their clients displayed an interest in mediation, judge Fleck's clerk would hand them a list of mediators who judge Fleck believed to be competent. Eventually, if the plan worked in Chicago land.

Judge Fleck intended to report the results to his former colleagues in Springfield at the State Assembly so that a State-wide program might be implemented. A rigorous statistical survey was to investigate the progress and results of the Chicago plan-a truly noteworthy plan, by the way, since even the then recently adopted California plan mandated mediation only as to custody settlements.

There were a number of problems which judge Fleck hadn't anticipated. For one, the judge had assumed (as I myself had earlier assumed) that there were domestic relations mediators already actively practicing in the Chicago area, and that there was some sort of professional society out there certifying competent professional mediators. My recommendation was that a formal training program be held in Chicago, so that those interested in mediation might at least acquire a common vocabulary, and so that the Mediation Council might grow into a full-fledged, standard-setting professional society. Judge Fleck had already gone to the press with news of his mediation program, committing himself to a kick-off date in March, 1982. It was too late to turn back. Moreover, Judge Fleck was determined not to allow the mediation program to meet the same fate as a notorious contracts-arbitration program which had been discussed, forgotten, and resurrected again and again over the proceeding seven years, all to no avail nor any product except frustration.

The judge asked me to investigate training programs which might be arranged for some time before March. Since I'd been involved in research on mediation for nearly two years by that time, I knew where to look and whom to call for evaluations of the various groups then engaging in training. Unknown to me, the judge had also (wisely) requested others also to investigate training programs for him. In any case, we decided to invite Steven Erickson of the Academy of Family Mediators for a personal interview with judge Fleck, and we subsequently decided that that group would be best.

I arranged for the training session to be held over a four-day weekend at the Stuart School of Business of the Illinois Institute of Technology, where I was teaching at the time. The training program met with success beyond anyone's expectations. It had looked as though eighteen or twenty might attend; in fact, forty therapists and lawyers showed up.

That training session made all the difference. It was the turning point. By the end of those four long days, there was a core of forty-one people in Chicago who shared a common vocabulary and a few common assumptions about mediation and the utility of a professional society for mediators in Illinois. By the end of the fourth day, the group had decided to set a date for the next Mediation Council meeting.

Burton Zoub chaired that meeting-a very successful one. I arranged for a videotape of a David Suskind show featuring members of the Academy of Family Mediators, a tape which very nicely illustrated the definition and goals of mediation. Six different committees emerged, and elections were discussed.

What no one knew was that for other reasons he would later explain to the press-that the pay scale offered to the judiciary is a scandal-Judge Fleck was planning to resign from the Bench that summer. Judge Fleck's Chicago plan never came to pass.

That was a great disappointment and a serious setback for mediation in Illinois. Judge Fleck's program would have been a marvellous innovation with nation-wide implications.

On the other hand, judge Fleck should be congratulated on catalyzing a great rush of interest in mediation. It was only in light of this rousing dynamic of professional interest that the need for a professional society became apparent.

The Mediation Council is vigorously engaged in promoting mediation in the State of Illinois. MCI's By-Laws Committee has seen to it that MCI fulfill all the functions of a professional society. There is a committee to evaluate training and to sponsor continuing education activities such as peer supervision groups and lecture programs. There is a Professional Liaison Committee whose purpose is to explain mediation to other established professional groups in such a way as to alleviate some of the otherwise inevitable conflicts. There is a Public Relations Committee working to inform potential clients that mediation exists. There is a Referrals Committee whose purpose is to make sure that those seeking mediation find qualified mediators in their areas.

MCI's emphasis on professional competence is high. The Membership Committee has determined that any Regular Members who fail to keep up with continuing education requirements will be dropped. It's in the interest of mediation as a profession to assure that all who mediate be competent both skills and knowledge. The public must be able to have confidence in mediation. To that end, MCI has also established an Ethics Committee.

For those who wish to practice mediation in Illinois, joining MCI is the right thing to do.

Conclusion
Mediation represents a revolution in the ordered resolution of domestic disputes. Mediation in domestic relations cases is a fine idea with praise-worthy goals.

Nevertheless, to consider mediation apart from the attitudes, habits and interests of established professionals-apart from the dynamics of self-interest and the fear of the unknown-is a great mistake.It was Weber who wrote that all law consists in bureaucratic means of dispute resolution. Modern law is distinguishable from all other informal or pre-modern forms of normative regulation precisely because modern law conforms to bureaucratic principles, and especially to the principle of expediency (in Weber's term, Rationalitaet).

In considering mediation, it is imperative to consider not only the good of clients but also questions of professional interests-apparently inevitable questions, some of which I have set out above.

Michael Joseph Rosanova, a sociologist and lawyer, is currently a partner in the Chicago mediation firm, the Family Mediation Center.