Occasionally I’ll see a message on a list-serv that captures my attention, and that most recently occurred with a recent message sent by Hiro Aragaki (Loyola – LA). I asked if I could post it here, and he agreed. If you’re not familiar w/ Aragaki’s work, he’s quite good at viewing issues from a different vantage point, and this one is no different. ___________________________________________________________
The Age Myth in Mediation
Does one’s talent or ability to be a mediator improve with age? With legal experience? Recently, someone posted a variation of these questions on a listserve. The poster noted that “older” mediators are often accused of lacking some of the skills we expect of a good mediator: the physical stamina to sit through hours of negotiations; the intellectual nimbleness to take in different perspectives and identify creative solutions, and even something as basic as good hearing. The poster then argued that we should not assume from the outset that older mediators lack these hallmarks of a good mediator. Talent and ability, in other words, are the true issues.
I am largely in agreement with the poster. But in my view, the real problem is hardly that older mediators are being denied opportunities to mediate; instead, it is that younger mediators are systematically being overlooked. If age should not be a factor in the case of older mediators, so, too, should it not be used as a proxy for “inexperience” or lack of talent with regard to younger mediators. (I concede for purposes of this discussion that arbitration may be a different case.)
As a “younger” mediator who started mediating in his early thirties about a decade ago, I had to overcome a systematic, overt, and unapologetic age-related bias. The bias against younger mediators is so commonplace that one scarcely notices it. Think of all the open and notorious comments one hears about mediators needing a head of grey hair—many of which, sadly, were repeatedly expressed and tolerated during the ABA dispute resolution section meeting earlier this year. If the same biases were voiced against female mediators, mediators of color, or even against older mediators, we would be screaming “discrimination”—and rightly so. Why should it be any different for people who are passed over simply because of their youth?
The reality is that there are many exceedingly well-trained and competent younger mediators out there. I have taught and worked with many of them. This should scarcely come as a surprise: most other fields, too, are blessed with young, talented people. Think of the founders of companies like Google or Facebook, or child prodigies like Mozart or Midori. In mathematics, there is a saying that all the best theorems were produced by people under the age of 35; once you’re past that age, the game is over. Like most other things, mediation is a skill that can be learned. There is no reason to assume that younger people can’t learn the skill quicker and better than their older counterparts.
Here it is often retorted that life experience gives older mediators an advantage. But empirical studies consistently show that experience itself is less probative than how one learns from that experience. There are plenty of people out there who have a lot of experience with the same problem but who are stuck in the same unproductive ways of coping with it (think of that friend we all have who always seems to be getting in and out of troubled relationships). It’s also often said that mediation requires a kind of “wisdom” that can only be acquired through age. Wisdom is certainly helpful, but it is surely just as important in setting up the world’s most successful internet company or in creating exquisite music that stirs the soul. Moreover, the academic consensus is that mediation and conflict resolution are essentially skills that can be taught with or without wisdom. And if that’s not the case, we should seriously begin wondering why so many mediators and law professors are making a living teaching “wisdom” to others. Almost by definition, wisdom is not something that can be taught.
I don’t doubt that, generally speaking, people of a certain age can be expected to have more composure, maturity, etc. to deal with conflict situations than their younger counterparts. Generalizations are useful heuristics. But in the case of younger mediators, the generalization has ossified into an insurmountable barrier-to-entry. I fear that we as a profession are overlooking a vast pool of talented mediators who, if just given the chance, would more than prove their weight in gold.
Should this situation change? If so, what can be done to change it? I welcome your thoughts.
There is no substitute for experience, but experience in no way equates to skill. You can teach any person to dribble a basketball, but that will not make them Michael Jordan. However, Michael Jordan would not have become Michael Jordan had he not been introduced to a basketball. There have been many basketball players who played more seasons than Michael Jordan – but that did not make them better than him. Additionally, you can not claim that 2002 Michael Jordan (who had more experience) was better than 1987 Michael Jordan.
You can pick apart the analogy by pointing out that athleticism is fleeting, which is true, but in doing so you ignore the point. Skill is skill and experience is experience. There can be and is a nexus where these two combine and maximize.
I disagree with the previous poster that “[a]bsent personal authority, a mediator is just a fancy master of rhetoric.” I say absent skill, a mediator is just a chest of war stories without a way to connect to the parties and apply that experience to the current situation.
Consider the former judge mediator who has presided over 200 car accidents during her time on the bench. She knows that in those 200 cases, never did a plaintiff receive more than a certain sum in damages (for ease, let’s say $50,000). With only this experience to draw from how does she mediate a case where the plaintiff is likely to receive $75,000 or $100,000. If you ONLY rely on experience, you have to have experienced everything once before you can mediate it. However, a mediator who is based on skill can apply the rules, maxims, and formulas to the mediation even if it is a situation they have never seen before.
In reality mediators, young and old, have a mix of experience and skill – neither group is completely devoid of one of these categories. What a young mediator may lack in experience (10 car accident cases instead of 200) may be made up for in trainings and skills.
As a young mediator myself, I have never had a problem creating a “personal authority” – as I do not rely on my mediation clout to resolve disputes. A mediator that relies on this clout may be more interested in their “mediation success rate percentage” more than developing a proper rapport with the parties and subscribing to the highest of mediator ethics – that of party self-determination.
Parties who settle based on the personal authority of the mediator are NOT mediating. It is either a form of Early Neutral Evaluation followed by negotiation or some form of non-binding arbitration followed by the same negotiation.
When representing my first client in mediation as a young attorney, I looked to the senior partner to decide which mediator I should utilize. He picked the attorney in town who had 25+ years of experience and had mediated many cases (this was “the” mediator in town). At the mediation, the mediator tried to enforce his “personal authority” on me and my client – deciding that my client owed at least $75,000 based on his “personal authority”. My client was not willing to go above $5,000 at mediation. We went to trial. At trial, the judge threw out the plaintiff’s case on a motion for directed verdict – on 7 individually dispositive grounds. The jury awarded my client $50,000 on our counterclaim (which the mediator claimed to be nothing more than a “make weight” claim). Relying on nothing but “personal authority” of the mediator, my client would have had a $125,000 loss.
Mediation is a skill, one that can and should be taught and learned. At what age a person learns these skills should not be determinative of their ability to serve as a mediator. As Professor Aragaki states, this is nothing more than ageism and would not be tolerated if based on any other classification (race, sex, or old age to name a few).
The advantage that comes with age is not so much age, per se, as “personal authority” – that shared moral authority and respect of all involved that goes beyond the role being filled in a particular mediation.
In the era of aristocracy young aristocrats often did the kind of tasks that mediators do today. Young senior managers do much the same thing within their businesses. Some religious figures have some of that kind of authority within their own religious community. In some ghettos a young (but still senior) gang leader or former gang leader may have that kind of authority. But, age predominates as a source of personal authority between third parties these days because it is much harder for younger individuals to acquire the requisite personal authority outside an organizational structure in our egalitarian society.
Absent personal authority, a mediator is just a fancy master of rhetoric, a salesman looking for deal, who can offer much normative weight to his or her own judgment that can cause parties to rethink their own norms. This can produce deals but not with the readiness that someone with personal authority can offer.