Mediation, Mediator, Mediation – PART 1

by Greg Rooney

Greg Rooney Portrait 0686Mediation has an identity issue – but it’s not its fault.

Mediators – and the profession they practise called mediation – merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions.

We now live in a time where a world of connectivity and fluidity has replaced the 20th– century Newtonian concepts that are linear, predictable and deterministic.  This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004.

The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy.  Then came Airbnb and Uber, both in 2008.  We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.

The latest iteration in this change is the development of the ‘Internet of Things’ which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example Uber’s computers share traffic data with Google Maps computers.

The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future.  Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment.

The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours.  The sharing economy relies on the willingness of users to be trustworthy and to trust each other.  The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.

We therefore require a new way of thinking and operating that can work with this complexity.

This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s.  They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions.  They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now in high demand in the commercial world.

It is the established professions and the commercial and social institutions that are having the identity crisis. They are in a scramble to find meaning and understanding to try to fit in with this new reality.

No profession is more under threat from this new world order than the legal profession.

Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge self-inflicted wound.

It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

This is Part I of a three part series by Greg

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