1) Most people know very little about either one.
2) People who have heard of it often think it’s a waste of time, and may deride those who support it.
3) Neither are promoted in mainstream culture.
4) The formats bear some similar appearance: Several people sit around a table. One person seems to be “in charge,” but really, that person is just helping the other people at the table actually make meaningful decisions by providing structure and clarity for the process.
5) Neither one has a final, decisive ending that declares a winner. Rather, the purpose for both activities is to have a mutually satisfying experience and outcome; everyone wants to walk away from the table feeling like it was a worthwhile investment of 3 hours (… or 5 hours… or 18 hours…).
6) The enemy that must be defeated is abstract in both cases. For D&D, it’s the… well, the Dungeons and Dragons that must be overcome (it’s extremely clear naming). In mediation, it’s the conflict itself that is the enemy– not the other person.
More people than ever are playing D&D- and even filling theaters to watch professionals play it. Can mediation find the same increased acceptance in our culture?
The Wizardry of Brand Management
D&D surged in popularity in the last few years. The owner of the game and the brand, Wizards of the Coast (WotC), has rebuilt and redesigned the rules and format several times since taking over the trademark in 1993. When launching the 5th edition of the game in 2014, WotC leveraged social media to demonstrate how the game worked. The 5th edition was easier to understand, easier to play, and easier to watch than any previous edition. These changes made it more inviting for new players and also made it much more of a spectator event, which fit with the use of streaming services like Twitch and YouTube. Enthusiasts started to publish their own gaming sessions online, effectively turning their gaming product into a TV show—sort of a strange inverse of how most children’s cartoons worked in the 80s and 90s to sell toys. Like so many video games that now comprise the esports corpus, D&D became a game that collected an avid fan base and consistent spectators to fill streams and theaters. Podcasts, streams, and live performances have introduced thousands of new players to the game, as well as rekindled the imaginations of those who have not rolled a twenty-sided die in decades.
Despite their broad similarities, mediation has not exactly kept pace with D&D’s surge in popularity. Despite the overwhelming difference in cost, time, end (arguably) effectiveness, litigation remains the gold standard for dispute resolution in matters of legal consequence in the US.
Courtroom drama television shows, (and “procedurals,” generally) have done well in the US. A regular program centered on mediation could easily do as well as any long-running legal procedural show. Wizards of the Coast brought D&D out of derision and obscurity (even dismissing alleged satanic affiliations) by making it comprehensible and accessible. They used every possible tool to present an alien an esoteric game structure in a way that was engaging and entertaining, while at the same time gently informing viewers who simply watched the process.
Two Obstacles To Mediation’s Popularity
There is a snag in the economics of promoting mediation: Wizards of the Coast is financially incentivized to promote their D&D product. A lot of wealthy people and companies are not necessarily incentivized to promote mediation as a primary form of dispute resolution. Trials can be incredibly expensive, and their complexity and cost often favors the side with more money to hire more experienced attorneys. Those with advantages of any kind, in any setting, are typically unwilling to give up those advantages. If the US legal system creates any advantage for those with power or wealth, it is easy to see why power and wealth would not be used to promote an alternative method of dispute resolution.
The other primary obstacle is the lack of cohesive ownership over mediation. D&D is a gaming product owned by a single company, and so decisions surrounding its brand management are made by a single entity. Mediation is a broad structure of dispute resolution, not owned by any particular body. Indeed, it is not the kind of thing that is subject to trademark or patent protection. There are trade groups and individual specialists who would like to see mediation increase in popularity, but there is no single entity with resources and authority over mediation. It is not comparable to the relationship of a company with its product. The lack of a trademark or ownership makes branding extremely difficult. Wizards of the Coast is able to manage D&D carefully, shutting down counterfeit products and distinguishing itself in the gaming market. Mediation is not the kind of thing that is subject to trademark protection.
The Cultural Boost for Competitive over the Cooperative
If popularity is about brand management, mediation seems condemned to obscurity because that brand can’t be effectively managed.
But how did litigation get popular without a trademark and a livestream? Perhaps the adversarial attitudes in litigation fit naturally with a competitive culture. Litigation so often becomes about beating the other side, rather than beating the conflict itself. Mediation is most successful when each side sees the obstacle as the conflict itself, and everyone works together to defeat that problem—not to defeat each other.
Despite the epithet of “rules lawyer” to describe many D&D players, a society that played more cooperative tabletop games would probably be less litigious. Taking a few hours to learn to work with someone who has different personal objectives from your own is an unusual activity in our culture, but learning to listen and cooperate might have value in an increasingly interconnected and networked society.