We know of mediation usage in early societies as well as the use of arbitration by Greek states and European merchants. However, less thought has been given to the historical events and trends that lead to the expansion of alternative dispute resolution in the United States, which can be identified by the following major factors:

One was the development of labor laws. Railroad worker strikes following the Civil War resulted in the creation of state arbitration boards and the first federal labor dispute law. In 1926, Congress passed the comprehensive Railway Labor Act, still in effect today, that provided for collective bargaining, mediation, voluntary arbitration, and fact-finding. That was followed by the Federal Mediation and Conciliation Service, the oldest continuing mediation institution in the United States. One of its first directors has said its early days were devoted to educating management and labor on how to use negotiation and mediation as they “did not know what they were doing or how to do it.”

Second was the growing criticism of the court system. Responding to those criticisms, Supreme Court Chief Justice Warren Burger convened a conference to discuss the inefficiencies of the justice system. The Chief Justice spoke in strong support of more use of alternative dispute resolution. Along with negotiation, arbitration, and mediation, other techniques included settlement conferences, mini-trials, summary jury trials and neutral evaluation. Supreme Court Justice Sandra Day O’Connor is often credited with the statement, “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” 

The growth of applications for alternative dispute resolution continues and it’s reasonable to ask why. My contention is that we can find the answer in the growth of “rights”—a term itself difficult to define. John Stuart Mill’s definition serves our purpose: “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion… To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.”

 Historically, of course, people do not have the same rights we do today. Nor do people in all societies have the same rights. In Europe, only the wealthy owned land and had rights derived from that status. In the colonial era, the basis of rights were land ownership, gender and race.

 Over time with changing values, other rights received recognition. The advance of worker’s rights, women’s rights, civil rights, GLBTQ rights, children’s rights and animal rights have been developed through conflict. The guarantee of those and other rights has been protected in courts, but it has been in various forms of alternative dispute resolution, particularly arbitration and mediation, that we seek redress of violations of our rights. In free and open democratic societies that limit the scope of courts, disputes over one’s rights now account for the growth of alternative dispute resolution and particularly the growth of mediation.

Here are some suggestions from mediators I have worked with that give some insight as to how to motivate otherwise reluctant participants to try using mediation.

First, environment can make a difference. If the parties involved agreed to meet face to face, where the mediation is scheduled can be a motivating factor. This is certainly a factor in court referred mediations held in a courthouse. The environment—the security, the personnel, the building and room design, the decor--convey the message that this is the place to get serious and resolve the issues.

Second, the mediator’s pre-meeting messaging can be a major factor for those with little or no experience with the process. Some may have had experience or knows of someone else who does from child custody and visitation mediation. Of course, this may not be helpful for dealing with other kinds of disputes. When the mediator is able to meet with the participants individually, they are able to explain the process, answer questions in a safe, private setting and convey a positive message that mediation can work.

Third, the mediator can suggest ways to adapt the mediation to an individual’s concerns. Mediation is a robust process and adaption make the process more comfortable for the participants. For example, if a person is unwilling to meet face-to-face with the other party, the mediator can suggest working as an intermediary with the parties themselves in different rooms. Or if a person is able to express the need for an emotional support person with them, the mediator can work to gain permission from all parties that the participant can have a family member or friend with them throughout.

Fourth, the mediator can limit the scope of the session. A person may be reluctant to mediate in the fear that they’ll be forced to discuss something they are not ready or willing to share. Mediation must be self-determined. No one can be forced to talk about something in they are unwilling to. If the mediator is made aware of some limitation, it can be presented and agreed to by all parties.

Finally, the mediator can listen. Several mediators have related stories that actively listening to the party and asking a few questions is often enough to motivate the person to go forward with the process. In the words of motivational speaker Steve Maraboli: “Sometimes we just need to be heard… There are times in life when being heard leads to being healed.”

While these suggestions are from mediators, they can apply as well to disputes any of us can find ourselves dealing with.