::Grayfred Gray's Remarks, 2007 Mediation Day::

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Thoughts on being honored by the Tennessee Coalition for Mediation Awareness *
by Grayfred B. Gray, October 18, 2007

Thank you very much for the honor of naming an award in Mediation and Public Service for me. I am aware what a rare honor that is. I accept it on behalf of those Tennesseans who have worked to develop this new profession here. I accept it on behalf of the many people who have helped me learn that humility is central to being a confident and capable mediator.

From well trained volunteer community mediators to paid mediators with their roots in different other professions these people are making a place of honor for the mediation profession across the state. Before there were some 900 mediators on the Supreme Court's list of Rule 31 mediators for the Circuit and Chancery Courts, there were hundreds of volunteer mediators across the state who worked in family, business, and community disputes of all kinds and in General Sessions and Juvenile Courts. The volunteers created much of the public perception of the profession and its value to the public. In some counties volunteers still mediate more cases than paid mediators. I believe that is likely to be true for generations to come.

I believe it is important, especially perhaps for paid mediators, to recognize that there are peer mediators in our schools and that we benefit by fostering their development. We are a unique profession in that children can learn to practice it well enough to serve important interests in our schools and communities. I doubt there is any other profession, except perhaps the ministry, in which that can be said. That does not mean that our profession is simple or does not require special skill or knowledge. It does, but it does mean that there are different levels of dispute and different levels of need among disputants.

9 Brief Points

1. At least for the rest of the lives of those of us in this room I hope that mediators and the public will be clear that mediation is still a new profession with ill-defined boundaries. Those boundaries need to be found by honest exploration, experimentation, and inquiry rather than polemic or premature legal regulation.

2. Our concern for pursuing the highest quality in our work is important, but unless we temper it with the humility appropriate to a new profession, we will strangle its development at prices that we may never recognize, but our clients, the public, and future mediators will pay.

3. Mediators do not know “the right way to mediate” because there is no one right way any more than orthopedic surgery is “the right way” to practice medicine. There are an unknown number of excellent ways to mediate. We need to know the place for each of the varieties of mediation. We need to respect their being done well. I regret that for a good while I was one of those who believed that there was a best way to mediate and then there were the other ways. I was wrong. I apologize to each person who has been the victim of my error.

4. The client's right to self-determination in process design under the Model Standards of Conduct for Mediators tells us that there is a need for different models of mediation. There are many kinds of mediators, who mediate in very different ways. The differences are far beyond style. Disputes are different. Disputants are different. Those differences give rise to a need for genuinely different kinds of mediation from problem-solving to directive, from evaluative to transformative, from client-empowering to mildly facilitative.

5. Mediators are not omni-competent. That means that we need to know good mediators who mediate differently to refer some of our clients to. That means that we need to have contact with mediators across the range of work instead of staying together with those who do it like we prefer to.

6. Mediators have a public moral duty to come together and learn from and teach one another, including across the lines of our professions of origin, fields in which we help clients resolve disputes, how we mediate, and whether our work is paid for or pro bono.

7. Mediators have a stake in the quality of mediation done by all mediators so we need to press for all mediation to be done by professionals, that is, by people who are adequately trained and educated for the mediation they are to provide. Being a professional does not mean making a living by or charging a fee for mediation, though many mediators in our society will earn money by doing it. As mediation becomes more commonly used, I believe that most professional mediators will not be paid for it because most of the disputes they will help people resolve do not involve enough money for people to pay for the service.

8. Mediators who do want to be paid for the service have a dramatic need to support the volunteer mediators and other professional mediators who do not seek pay. The unpaid mediators will always do most of the mediation.

9. Justice is not what most people live for or seek in resolution of conflicts they are in. Likewise mediation is not about justice, and lawyers who think as I did when a law student and see mediation as an arena of second class justice or even injustice need to broaden their understanding of people and conflict resolution. Even crime victims are quite commonly not concerned with justice. They are concerned with going ahead with their lives and getting over what happened to them. They are concerned with solving the problems that are before them, not the injuries of yesterday. Many of them are even more concerned with the moral quality of their own lives than they are with justice.

The Nickel Mines Amish community in Lancaster County, Pennsylvania taught us all a major lesson in that fact in 2006. When the Amish community, having had 5 of its little girls shot to death as they lay bound on the floor of a one room school house and 5 more terribly injured by gunshots to the head as they lay there bound, turned away from justice and said the important thing was to forgive the dead man who had shot them and to embrace the killer's family and help them, too, survive the awful violence. For them justice did not matter at all, but conflict resolution by forgiveness and reconciliation did.

I thank all those whose work with me has brought me to this day in mediation. I thank each of you who is here today and the Tennessee Coalition for Mediation Awareness for your kindness and generosity in naming an award after me. I hope your doing so will promote mediation awareness across the state and in Pennsylvania where I now live.

* Now Coalition for Mediation Awareness in Tennessee (CMAT)