The world of trusts and estates is changing before our eyes - the  multidiscipline practice  trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills and I specifically recommend that they take advantage of learning more about what mediation has to offer. My message is the same to all of you, but I offer an additional challenge to all of you: Get involved in your state or local bar association and determine how you might build that house and how you might make sure that all have access to that house. The field of mediation is still very wide open and much still needs to be done at the structural level. You may find, as I did, that this activity is both meaningful and self-satisfying. Your participation and hard work CAN make a difference

Volkmer, Ronald R.

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Pepperdine Dispute Resolution Law JournalVolume 1 | Issue 2 Article 74-1-2001Institutionalizing Mediation: The Role of Lawyersand Bar AssociationsRonald R. VolkmerFollow this and additional works at: https://digitalcommons.pepperdine.edu/drljPart of the Dispute Resolution and Arbitration Commons, Estates and Trusts Commons, FamilyLaw Commons, Law and Society Commons, Legal Profession Commons, Litigation Commons, andthe Other Law CommonsThis Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inPepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contactjosias.bartram@pepperdine.edu , anna.speth@pepperdine.edu.Recommended CitationRonald R. Volkmer, Institutionalizing Mediation: The Role of Lawyers and Bar Associations , 1 Pepp. Disp. Resol. L.J. Iss. 2 (2001)Available at: https://digitalcommons.pepperdine.edu/drlj/vol1/iss2/7Institutionalizing Mediation: The Role ofLawyers and Bar Associations'Ronald R. VolkmerProfessor of Law, Creighton UniversityIn discussions about mediation, I find that the usual focus is upon on theprocess-related issues, such as those relating to power imbalances, confidenti-ality, and, of course, the on-going debate over "real" mediation - usuallycouched as the "facilitative v. evaluative" styles. As important as these issuesare, I find myself coming back to a more basic question: How do we get par-ties to the table? While pondering that most basic of questions, I'm also fas-cinated and challenged in visioning the comfortable fit between mediation andone the most basic institution of our society, our government.For all the talk about the user-friendliness of the process and the unques-tioned rise in popularity of mediation, I believe that those of us who wouldlike to see mediation used more widely need to think locally and concretely ifour dreams are to become reality. Experience has taught us, I believe, that theavailability of well-trained proficient mediators does not necessarily lead touser acceptance. There are, no doubt, a litany of factors that lead to the con-clusion that "If you build it, they will not necessarily come." Let me giveone example:Robert Benjamin, in a recent article in MEDIATION QUARTERLY. 2 suggeststhat "there is a deeply ingrained cultural resistance to negotiation and media-tion." He theorizes that the sources of this resistance "can be traced to ourmoral and religious teachings and to the theological practices that underlieour culture." As fascinated as I am by this thesis and as drawn as I am to adiscussion about cultural and religious norms, I will resist this temptation andproceed to discuss the practical and mundane. Assuming that we all sharesome interest in promoting the use of mediation, how might that beaccomplished?1. [Editor's note: the following speech was presented before the Joint Program of Sectionson Alternative Dispute Resolution and Donative Transfers. Fiduciaries and Estate Planning inWashington, D.C., on January 7, 2000. The theme of the panel discussion: "Using Mediation toResolve Probate Disputes."]2. See generally, Robert D. Benjamin, Negotiation and Evil: 77Te Sources of Religious andMoral Resistance to the Settlement of Conflicts, Mediation Q.. Spring 1998.1Volkmer: Institutionalizing Mediation: The Role of Lawyers and Bar AssociaPublished by Pepperdine Digital Commons, 2001As I begin, I have some phrases that suggest the kinds of topics I'm in-terested in talking about today: creating a structure for mediation [otherwiseput, "building a house" for mediation]; providing incentives and opportuni-ties within existing structures for mediation [otherwise put, "creating a pipe-line"]; and assuring accessability to mediation [otherwise put, "how is media-tion made available to all segments of society"].In offering some thoughts on these topics, I draw upon my own exper-iences as a law professor who has taught both mediation and trusts and es-tates, but more importantly, my experiences as a volunteer within the commu-nity and as an active member of the Nebraska State Bar Association.If there is one role that law professors are supremely qualified to per-form it is that of being the educator. When the ADR movement was in its in-fancy, there was rampant ignorance and widespread confusion whenever theterm "mediation" was mentioned. My experience is that one should never as-sume, in conversing with lawyers and judges, that the process of mediation iswell understood. There are all kinds of opportunities that a law professor has,in working with and through the bar association, to educate the legal commu-nity. When the Nebraska State Bar Association held its first bench/bar confer-ence over ten years ago, my mentor and friend Kathleen Severens and I werepart of the proceedings. Our role, as we see saw it, was to engage the liti-gators in a discussion as to how the mediation process might assist the par-ties. We wanted the bar leaders to know that we respected the role of judges,the litigation bar, and the adjudicative process. But we also wanted them toknow that the "one size fits all" approach of litigation had, as Len Riskin soelegantly put it, "a power all out of proportion to its utility." While makingour points we tried to use a mediation technique: we tried to acknowledgetheir feelings of fear and insecurity and attempted to explore WHY our audi-ence might be feeling threatened by mediation. In any dialogue with lawyersand judges you have that opportunity to do what you do best: teach.In many bar associations there are official committees that are devoted tothe topic of Alternative Dispute Resolution. If you believe, as do I, that thebar association can and should play a significant role in the institutionaliza-tion of mediation, then the ADR committee of the bar is the logical place tobegin. It is probable that the members of that committee are least sympatheticto, if not wholly supportive of, efforts to increase the use of mediation. Youneed to have a nucleus of persons within the bar to effect change and if thosepersons' talents and energies are focused at the level of an official committee,the chances of success are enhanced..In Nebraska, the ADR committee of the Nebraska State Bar Associationprovided the opportunity for a group of energetic and creative thinkers to plana strategy for involving the state government in the promotion of mediation.2Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 2 [2001], Art. 7https://digitalcommons.pepperdine.edu/drlj/vol1/iss2/7[Vol. 1: 273, 2001]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALUnder the leadership of Kathleen Severens, the ADR Committee wrote pro-posed legislation that would create an Office of Dispute Resolution within thecourt system. This Office would encourage the creation of community-baseddispute resolution centers by making grants to those non-profit entities thatwould agree to basic structural and performance standards. The communitydispute resolution centers would be free-standing entities that would providemediation services to the public utilizing trained volunteers. The establish-ment of this office was a landmark step; it was a comfortable blend of statestandards and local control. In order for this legislation to pass unanimously(which it did), extensive networking and grass roots lobbying was employed.Law professors are excellent resources for doing this type of activity: ourschedules are generally more flexible than most professionals and we areviewed with credibility by the public by virtue of our status.The approach of Nebraska, as well as that of some of the other states,has been to enact comprehensive statutes that have the effect, in varying de-grees, of "regulating" or "encouraging" mediation. In some states there arestatutes that are subject specific, such as the so-called "farm mediation" stat-utes. From state to state the interest group that has been active in the promo-tion of such legislation is usually clearly identifiable. It is usually not difficultto associate oneself with the interest group in question and become a part ofgroup that is institutionalizing mediation by way of legislation.Earlier today, the AALS Section on Alternative Dispute Resolution spon-sored a program on "court-sponsored" ADR programs. Many of you areprobably aware that the "institutionalization" of mediation in many jurisdic-tions has come about by court rule. In some states, the supreme court hastaken the initiative by establishing supreme court committees on alternativedispute resolution. Once again law professors are uniquely situated to provideexpertise and, perhaps, practical experience.If you have any interest at all in becoming a community or bar leader inpromoting mediation, I would strongly urge you to take a training course inmediation. It may be that your training experience leaves you with the firmlyheld conclusion that you do not have the skills to be an effective mediator.Conversely, you may find that you are one of those naturally gifted, facilita-tive persons for whom the process is virtually second nature. If you're likeme and like a lot of others I have met, you probably fit somewhere in themiddle: You have the desire and skills and all you need is practice, practice,practice. Learning new practical skills can be tremendously insightful andself-satisfying, especially when you realize that the skills you are learning are3Volkmer: Institutionalizing Mediation: The Role of Lawyers and Bar AssociaPublished by Pepperdine Digital Commons, 2001LIFE skills, not just lawyering skills. If you go down the road of being atrained mediator, you can participate in other educational activities within theburgeoning world of mediation training. Within my own state, I have beenprivileged to volunteer my time as a coach in numerous mediation trainings. Ihave also volunteered as a mediator in small claims court. In addition, I havetaken every advanced level mediation training to enhance my knowledge andskills. I've had the opportunity to co-mediate three cases referred by the fed-eral district court.It is enormously beneficial for those who are encouraging the use of me-diation to be able to speak from first hand knowledge. If you have had expe-rience as a mediator and have had the thrill of seeing the mediation processwork well, you enhance your credibility as a leader in the field. In this field,like others, experience is the best teacher.I have spoken of the law professor's role in "institutionalizing" media-tion and how law professors can participate in the process of building designsystems that create an "infrastructure" for mediation. As one who has partici-pated in the process of building an infrastructure, working arm and arm withlawyers and non-lawyers, I can assure you that the experience can be re-warding and self-satisfying. In this day and age when publications tend to bethe sole measure of a law professor's contribution to the legal system, thecontributions a law professor makes in law reform activities tend to be under-valued. The down-to-earth activities I have described are not usually high-lighted in what a colleague of mine has described as "brag pieces" mailedout by law schools. But as one who has been privileged to work in buildingan infrastructure for mediation and has had the experience of being a media-tor, I received intangible rewards and a satisfaction that law review authorsrarely, if ever, experience: I made a positive, tangible contribution to makingour society more peaceful. When we build that infrastructure and make medi-ation more readily available and work to improve the quality of mediation,we may never realize how great our impact has been and how many peoplewe have helped. Working within a system as entrenched as the legal systemis, it may require a lengthy and substantial commitment before efforts tochange that system are realized. But if you believe as strongly as I do in me-diation, you will commit yourself to do whatever it takes to make mediationmore widely accepted and a comfortable fit with our adversarial legal culture.In thirty years of law teaching, I am proud of many of my professional activ-ities, but volunteering my time to promote the utilization of mediation proba-bly ranks first on my list of accomplishments.The world of trusts and estates is changing before our eyes - the "mul-tidiscipline practice" trend may radically change the traditional practice of theprobate bar. There is one constant, however, besides change and that is con-4Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 2 [2001], Art. 7https://digitalcommons.pepperdine.edu/drlj/vol1/iss2/7[Vol. 1: 273, 2001]PEPPERDINE DISPUTE RESOLUTION LAW JOURNALflict. That conflict is oftentimes lurking beneath the surface when a lawyerbecomes involved in the estate planning process. All of the technical knowl-edge you may possess about the legal system and its rules is valuable andnecessary. But, the estate planning lawyer is preeminently a counselor at law.In the strongest possible way I urge students to become aware of conflictmanagement skills and I specifically recommend that they take advantage oflearning more about what mediation has to offer. My message is the same toall of you, but I offer an additional challenge to all of you: Get involved inyour state or local bar association and determine how you might build thathouse and how you might make sure that all have access to that house. Thefield of mediation is still very wide open and much still needs to be done atthe structural level. You may find, as I did, that this activity is both meaning-ful and self-satisfying. Your participation and hard work CAN make adifference.5Volkmer: Institutionalizing Mediation: The Role of Lawyers and Bar AssociaPublished by Pepperdine Digital Commons, 20012786Pepperdine Dispute Resolution Law Journal, Vol. 1, Iss. 2 [2001], Art. 7https://digitalcommons.pepperdine.edu/drlj/vol1/iss2/7

Institutionalizing Mediation: The Role of Lawyers and Bar Associations

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Institutionalizing Mediation: The Role of Lawyers and Bar Associations

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