Marketing might not carry the altruistic, save-the-world character of mediation, but marketing may be necessary to save the field of mediation.
Crisis in Conflict Resolution
When mediation was first introduced as an alternative to litigation, its proponents seemed to believe that widespread use of mediation would occur if the public knew about it (one survey in the early 1990s supported this assumption). This view makes sense in light of the flaws of litigation and the ability of mediation to remedy these flaws. Litigation involves risk, expense, and incentives for each side to exaggerate and minimize in a way that hinders the truth-telling potential of courtroom procedure. Because attorneys understand this, they tend to negotiate with opposing counsel and sell settlements to clients who were not directly involved in reaching this resolution. With the psychological benefit of getting to yes shifted to attorneys, it’s no wonder that clients resent lawyers and are often dissatisfied with legal negotiations.
However, despite the rational benefits of mediation and increased public awareness of the process, the demand for mediation has not materialized in the way its early adapters had predicted. There are a number of cultural, psychological, and decision-science elements working against the widespread use of mediation.
First, American culture presents obstacles to mediation. Our collective psyche focuses on individualism over collectivism and the benefits of competition. As a projection of our approach to conflict, our justice system focuses on discerning an objective truth rather than accepting multiple, varied truths in a search for the greater good. And, finally, our culture tends to discredit negotiation, frowning on car salesmen in a way that cultures employing a bartering economy would not.
Next, important psychological elements work against the use of mediation. Though mediation presents a rational choice for disputants, people in crisis are not thinking rationally. Also, people can be conflict-avoidant, preferring outcomes handed down from authorities or accepting their lot through cognitive dissonance. Lastly, people discount ideas coming from adversaries, including offers, counteroffers, and even the suggestion of attending mediation (NOTE: research by Dr. Tanya Menon–one of our speakers for the 2017 OMA Conference–indicates that, while people discount ideas from adversaries, they value ideas from competitors).
Finally, the dynamics of how people with conflicting positions reach decisions also deters the frequent practice of mediation. Often, one disputant is satisfied with the status quo and will not approach the negotiation table voluntarily. Also, openness in a cooperative process exposes the participant to being taken advantage of by competitive adversaries (consider the competition-cooperation dynamics of the Prisoner’s Dilemma). Furthermore, if parties could mutually identify the problem and agree to approach mediation, they likely would be able to communicate effectively enough to negotiate without the assistance of a mediator.
The force of the above obstacles prevents the public from turning to mediation, even when they know that it’s an option. It is not enough to teach the public that mediation exists and offer it alongside litigation. So, how do we overcome these obstacles? I suggest that we look to marketing with effective use of information technology.
Marketing Mediation in Modern America
These days, people get most of their information online. People trust online reviews, satisfy their curiosity through search engines, and believe rumors they read on Facebook. Culture is an integrated pattern of knowledge, beliefs, and customs; and our culture is recorded, modified, and transmitted through the Internet. As a result, behaviors, culture, and decisions are best influenced through online presence. By “online presence” I am referring to your ability to be the subject of online testimonials and be at the top of online searches.
For example, lets say you’re an attorney looking for mediation clients. In addition to the people who are approaching you through personal references and traditional marketing, you want to be seen by potential clients Google-searching “low-cost litigation” or “how to avoid court” along with your practice area and geographical location. If you write an online article about how litigation is cheaper when people avoid court by using mediation and then link that article to your OMA profile or Google business listing, you are more likely to be seen by these potential clients.
While it is not enough that disputants know that mediation is an option, it is possible to use the Internet to convince them through targeting their decision-making process, social proof, and eventually changing our culture. First, though people are generally aware of mediation in a cool-headed state of mind, it is not where their mind goes when they are in crisis. Consider what disputants would Google search when panicking about the subject matter you mediate, then write a blog about that and link your contact information or Google business profile. And even when you have one disputant sold on the idea, you will need to convince the other of your credentials. So, next, use social proof by encouraging satisfied customers to rate and review you online. This means Facebook likes, Google business listing ratings, or reviews on websites that list members of your subject matter profession (e.g., ww.Avvo.com for attorneys). Eventually, people will not only have knowledge of mediation but also experience with it. Innovation research indicates that new ideas “tip” into widespread application when 15% of the population regularly applies them.
The thought leaders who publicized the existence of mediation took the first important step toward a more collaborative society. However, it is now up to the practitioners to reach out to disputants to make mediation a process people turn to when facing crisis.
 Adr Awareness, 10 Alternatives to High Cost Litig. 148 (1992) (“A recent survey by the National Institute for Dispute Resolution of public attitudes toward ADR reveals that once people understand what dispute resolution processes are, they overwhelmingly choose ADR to settle a dispute, rather than going to trial.”)
 Craig A. Mcewen et. al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995) (“In the episodic, lawyer-run negotiation, clients who play a passive and consultative role may believe that their lawyers are doing little and resent the diminished participation in and control over their case. The direct engagement of parties and concentrated attention to negotiation that mediation provides can thus improve lawyer-client relationships as well as efficiency and communication.”)
 Robert Benjamin, Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict (1999) (available at http://www.mediate.com/articles/guerilla.cfm#)
 Geoffrey A. Moore, Crossing the Chasm (2014)