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.

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.