Legal Mediation within the History of Civilization

The act of mediation has existed for centuries in one form or another in ancient civilizations and societies. Indeed, it is believed that "the communal nature of traditional societies, the kinship system, strong societal norms, cultural traditions and religious beliefs ... encouraged the development of process in which third parties with high social status assisted disputant to deal with their problems" (Spencer 23). Despite this deep and abiding dependence upon mediation in civilization's history, Legal mediation is still a relatively new organized practice of law in the United States, starting sometime in the 1970s and continuing through the 1980s. During this time "proponents of mediation spread their gospel to all civil arenas and even some criminal areas" in their attempt to persuade attorneys, legislators, and court administrators that "mediation was faster, cheaper and more satisfying than court" (27). 

These persuasive voices were eventually heard, for in the space of merely 2 decades, law schools moved from having "barely a course in the entire nation devoted to mediation skills and training" to having "barely a school that didn't offer such training" (27). This training has to the continued growth and development of mediation all across the nation. If you were to Google "local mediators", you would find long lists of qualified individuals who charge for mediation on an hourly basis. Despite this growth of training of mediation that is available, many attorneys still are hesitant to mediate because of our deep-rooted foundation on jurisprudence, or basing laws on case precedents. .

Steve Sumsion, a local attorney and my employer, has practiced law for almost 30 years. He comments on the history of law, regarding these case-to-case roots: "Our American jurisprudence is derived from English jurisprudence, which is based primarily on stare desisis or case precedent instead of statutory law or civil code. This system of law in America provides strong guidance to litigants through a broad body of case law developed over the decades.  Ultimately, the problems we face today are usually not a case of first impression, but rather largely answered by prior cases reported over the years. "

The courts and mediation are not meant to exclude nor replace the other, but to support and assist one another. During the '70s and '80s "judges and academics [rallied] for a new kind of judicial system, with mediation as a central feature of state-provided legal dispute resolution" (28). Mediation is a mode of dispute resolution as old as time itself, but what we need now is time for attorneys across the nation to realize the tremendous value mediation can and does lend to the resolution of serious issues. Its history is broad and all-encompassing, but there is still an uphill climb for the full embrace of mediation to be achieved.

Mediation Law and Practice by David Spencer