Bridging the divide between lawyers and mediators
Posted by: Diane Levin in Attorneys and Mediators, Innovations in the Practice of Law, Lawyers, Law and Justice
As an attorney and as a mediator I straddle two worlds. People have often asked me if reconciling these two professional selves is difficult, expecting that the gravitational pull that each exerts must draw me in opposite directions. It does not.
Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.
There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.
The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution. There’s plenty of mutual distrust and even open hostility to go around. What’s interesting is that because I’ve got credentials in both worlds, each side trusts me enough to tell me what they think about the other.
Among the concerns that attorneys have about mediators are:
- Mediators will take clients and business away from lawyers.
- Mediators who aren’t lawyers aren’t competent to mediate disputes involving legal issues.
- Mediators who are lawyers want to play judge and make lawyers look bad in front of their clients.
- Mediators are a waste of time and money–all they want to do is get everyone to get in touch with their feelings, hold hands, and sing kumbaya.
- Mediation is the handmaiden of tort reform.
Among the concerns that mediators have about attorneys are:
- Lawyers want to put mediators–especially mediators who aren’t lawyers–out of business.
- All lawyers care about is billable hours instead of helping clients achieve the best outcome possible in the client’s interest, not the lawyer’s.
- Because lawyers are adversarial, lawyers will make any bad dispute worse, destroying relationships and dissipating client assets.
- Lawyers lack vision: the only outcomes they can see are binary–win/lose, black/white, good/bad.
- Litigation is an (un)necessary evil.
Beginning next week I will begin a series of articles examining these concerns. My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.
I propose, in effect, to mediate between mediation and the law.
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Update: As the series unfolds, the links to each article will be posted below.
Part 1: Valuing the rule of law
Part 2: What mediators can do for lawyers
Part 3: What lawyers can do for mediators
Entries (RSS)
January 13th, 2007 at 8:40 am
Great choice of topics, Diane. Anything that advances the dialogue between the two professions will serve our mutual clients. The “bridge” that I think would be interesting to build extends between the two concepts of conflict and our respective approaches to managing it. There is a fundamental difference between the “legal” and the “mediative” concept of conflict, and what is the most valuable approach to dealing with it. I would look forward to an exploration from that perspective.
January 15th, 2007 at 3:52 pm
Wonderful topic.
I am not so sure there is really a fundamental difference between lawyers and mediators over conflict.
Surely we both want what is best for our respective clients?
We mediators, who are all about “communication”, have not done a very good job in engaging lawyers in a DR partnership.
Instead of “us and them”, we need to focus on our clients and what they really want. Sometimes it will be a rights based legal process and we must respect that. Other times it will be a mediation or other DR process.
Let’s work at making ADR mean “appropriate” dispute resolution. From that perspective, lawyers and mediators can and should be allies for our clients needs!
It should be an intersting topic.
January 16th, 2007 at 3:39 pm
It’s an interesting topic, and I’m looking forward to reading what you write.
On a somewhat related note, I presented at this year’s annual Association for Conflict Resolution conference on a panel addressing the role of attorneys in mediation. For the presentation, I made a brief annotated bibliography of some of the writing on that subject, and I thought it might come in handy:
Abramson, H. (2004). Problem-solving advocacy in mediations. Dispute resolution journal, 59(3), 56-65.
Discusses shifting advocates away from a competitive, distributive approach toward negotiating within mediation.
Bingham, L., & Pitts, D. (2002). Highlights of mediation at work: Studies of the national REDRESS evaluation project. Negotiation Journal, 18(2), 135-146.
Going against the grain of common assumptions about the possible negative effects of advocates within mediation, the agreement rate increased when one of the parties were represented within mediation, and increased even more when both parties were represented. Having advocates present increased the average duration of the mediations (from 152 minutes to 184 minutes). Note: While Bingham’s survey data is interesting, the decision to have advocates present isn’t random, and it’s easy to imagine that the increase in settlement rates is a spurious correlation, related to elements of the conflict other than the presence of advocates.
Gordon, E. E. (1999). Why attorneys support mandatory mediation. Judicature, 82(5), 224-232.
The growth (and its rationale) of attorneys supporting mandatory mediation programs.
Irvine, M. (2003). Some “do’s” and “don’ts” of mediation advocacy. Dispute resolution journal, 58(1), 45-48.
Provides a good case study in intake steps that a court-annexed mediation program can take to proactively help prepare and educate attorneys before they enter a mediation.
Kraemer, K. D. (1992). Teaching mediation: The need to overhaul legal education. The arbitration journal, 47(3), 12-16.
The need for an increase in mediation-related training for attorneys isn’t a new or silent issue within the legal community.
Pearson, J., Thoennes, N., & Vanderkool, L. (1982). The decision to mediate: Profiles of individuals who accept and reject the opportunity to mediate contested child custody and visitation issues. Journal of divorce, 6(1/2), 17.
When looking at couples who opted to use mediation in their child custody negotiations, “For both men and women, a key factor is the encouragement offered by private attorneys with mediating men and women far more likely to have attorneys who urge them to try.”
Phillips, G. (2000). What your client needs to known about ADR. Dispute resolution journal, 55(1), 64-69.
A nice example of how attorneys can help play a positive role within ADR processes.
Underwood, C. L. (2005). Mediating in Florida: New rules for out-of-state attorneys. Dispute resolution journal, 60(3), 40-42.
Florida’s shift in bar requirements for out-of-state attorneys participating in mediation might, arguably, point to a growing understanding within the legal community of the different role and services attorneys provide their clients within mediation.
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Personally, I have a favorable opinion towards attorneys, both in general and within the mediation process. That comes from my experience as a mediator (14 years of practice work) and as an academic looking at what little research exists on the subject (doing teaching and researching in graduate conflict resolution institutes and departments).
My hackles only get raised when the entirely ludicrous expression “attorney mediator” is used, because what it implies is off base. Background as an attorney or any expert knowledge of the application of law to a particular dispute isn’t relevant to one’s role as a mediator (unless one cares to abuse that role), and there’s no evidence or even easy argument that legal training equips one to to be a better mediator (in fact, it often makes for bad adversarial habits that need to be changed).
I hold a Ph.D. in conflict analysis and resolution, and yet when I serve in the role of mediator I don’t preface mediator with “academic mediator” or whatnot. So it always strikes me as off-putting and ill-informed when an attorney feels that their legal training is relevant or worth noting when it comes to their practice as a mediator.