The Complete Lawyer — an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson — has added an ADR column, “The Human Factor“.

Written by me and three smart, savvy women I am honored to call my friends — Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog — “The Human Factor” seeks to make ADR relevant to the work of lawyers today. The inspiration for the title of our column comes from pioneering legal reformer Dean Roscoe Pound, whose work presaged the rise of the alternative dispute resolution movement:

A century ago, Dean Roscoe Pound exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern,” “putting the human factor in the central place.”

Located in different parts of the U.S., each of us offers a unique way of looking at ADR and its connection to law and justice, in particular what that connection means for the human factor — the individuals whose lives the law affects. In our first column, we introduce ourselves to readers and let them know what to expect from future issues.

Besides “The Human Factor”, there’s plenty more worth reading at the latest issue of The Complete Lawyer, which focuses on the question, “What Do Women Lawyers Really Want?” (I’m one, and I’m still not sure myself.) Find out the answers by visiting The Complete Lawyer now.

A press release just crossed my desk for “Divorce Mediation: Myths & Facts,” an online radio show. Back in November, I explained how the show has managed to create some myths of its own — namely, that the best divorce mediators are lawyers.

An upcoming episode in March will cover “‘Certified’ Doesn’t Mean ‘Qualified’ - Choosing a Qualified Divorce Mediator”. I can’t wait to listen in, especially when the show mined a similar vein last November with “Choosing the Right Divorce Mediator” (in MP3 format), where you can tune in to hear aspersions heaped on the talents and expertise of mediators who are not attorneys. Look, I’m all for mediators doing everything they can to promote themselves and their work, but let’s not do it at the expense of fellow mediators, shall we?

So let’s clear some stuff up once and for all. Repeat after me:

Barack Obama is not a Muslim (and so what if he were?).

There were no weapons of mass destruction.

And you don’t have to be an attorney to be a competent divorce mediator.

An article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.

ADR legend Frank Sander, interviewed for the article, had the following observations:

“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.

But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”

“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”

If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”

My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:

Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.

Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

Kichaven then adds,

Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.

…

Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.

As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.

Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.

Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.

According to Newton’s Third Law of Motion, for every action, there is an equal and opposite reaction.

This must surely apply to the dispute resolution field. Consider this:

Exhibit 1: Action.

Family lawyers in Massachusetts, including esteemed family mediation pioneer John Fiske, are currently working to replace references in state law to “custody” and “visitation” — words laden with negative associations for parents facing divorce — with the terms “parental rights and responsibilities” and “parenting plans” — language which is far less inflammatory and likely to provoke conflict. If Massachusetts takes this step, it will join other states like its neighbor New Hampshire which have already incorporated such changes into law.  I have seen first-hand how destructive the traditional language can be and how much anxiety it arouses; those who work with families and couples in conflict as I have will no doubt welcome this change.

Exhibit 2: Equal and Opposite Reaction.

Every year I take the last week in December off and enjoy some of that time catching up on my reading. One of the books I added to my library is the tremendously entertaining pocket reference, William Drennan’s Advocacy Words: A Thesaurus. From the preface:

Effective word use is vital for anyone active in the law. For the attorney arguing a case or preparing a brief, for the jurist writing an opinion, even for the law student, words are the ammunition needed to make the point.

Quite an image, huh? Now this from the book’s description in the American Bar Association’s bookstore, which keeps the combat metaphors coming:

If you are a litigator, Advocacy Words can help you decimate opposing counsel’s position. If you are writing a brief, it can help you compose a convincing argument. If you are a jurist, it can help your opinions ring with the strength of your legal judgment. And if you are a law student, Advocacy Words can help you to hone your combative legal skills. Use the verbal dynamite in Advocacy Words to promote your position effectively. Let it be your companion in painting the verbal picture you want. Keep it handy to help you move others to your point of view.

In a way, it’s like reverse reframing.

The book is organized into two parts. Part one provides favorable words in one column with critical synonyms suggested in another; part two reverses it, with critical words in one column, with their favorable synonyms in the second.

For example, in part one, the critical “conspiracy, deal” are suggested substitutes for the favorable “agreement”; “confused, indecisive” for “considering alternative opinions”; and “manipulable, docile, meek, pliant, compliant, collaborative, toadying” for “cooperative”. Meanwhile, in part two, the favorable “frank exchange of ideas, frank discussion” is offered for the critical “argument”, and “flexible negotiator” for “soft-liner”.

See? Fun!

While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, “Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators“.

The press release contains the following quote:

For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.

(Emphasis mine.)

Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator’s role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)

Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.

Implying that the services of so-called “attorney-mediators” are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski’s “Let’s Change Our Limiting Self-Labeling Practices” posted at Mediate.com.

As family lawyer Diana Skaggs recently alerted readers, the nation’s leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In “Lawyers who mediate, not litigate: Collaborative law doesn’t have to be an oxymoron“, a column in today’s Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers–an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law — and other nonadversarial processes like mediation — may not be for everyone, many divorcing couples are electing these as a way to avoid the costs — monetary and otherwise — that litigation can produce.

Educators and parents have long accepted the notion that introducing children to art fosters creativity, builds cultural literacy, and makes for well-rounded human beings.

Art education however may in fact achieve far more than that: namely, help children develop important skills and habits necessary to the work they will ultimately do as adults, according to a recent study described in a Boston Globe article, “Art for our sake: School arts classes matter more than ever - but not for the reasons you think“. Two researchers with Project Zero at the Harvard Graduate School of Education, Ellen Winner and Lois Hetland, describe the surprising results of their study and the implications they hold for the future of education.

They discovered that art teaches children key “studio habits of mind”, including persistence, expression, and the ability to make clear connections “between schoolwork and the world outside the classroom”–in other words, to see real-world applications for the lessons learned in class.

Researchers noticed something important at the very beginning:

The first thing we noticed was that visual arts students are trained to look, a task far more complex than one might think. Seeing is framed by expectation, and expectation often gets in the way of perceiving the world accurately. To take a simple example: When asked to draw a human face, most people will set the eyes near the top of the head. But this isn’t how a face is really proportioned, as students learn: our eyes divide the head nearly at the center line. … Observational drawing requires breaking away from stereotypes and seeing accurately and directly…Seeing clearly by looking past one’s preconceptions is central to a variety of professions, from medicine to law [emphasis added]. Naturalists must be able to tell one species from another; climatologists need to see atmospheric patterns in data as well as in clouds. Writers need keen observational skills too, as do doctors.

The authors conclude:

For students living in a rapidly changing world, the arts teach vital modes of seeing, imagining, inventing, and thinking. If our primary demand of students is that they recall established facts, the children we educate today will find themselves ill-equipped to deal with problems like global warming, terrorism, and pandemics.Those who have learned the lessons of the arts, however - how to see new patterns, how to learn from mistakes, and how to envision solutions - are the ones likely to come up with the novel answers needed most for the future.

How well did your own education prepare you to master those habits?

(Photo credit: Carlos Paes.)

Two weeks ago I published a post explaining why I would not be observing One Day Blog Silence today, April 30, when many bloggers will be observing a collective day of silence in honor of the victims of the Virginia Tech shootings along with others who have fallen to violence throughout the world.

I have chosen not to participate. Today instead I am calling attention to another important observance. Tomorrow is Law Day. Law Day, a public education initiative of the American Bar Association, was created to celebrate democracy and the rule of law. I can think of no better way to honor those who have perished through violence than to celebrate the fundamental liberties that the rule of law protects. Before we can have peace in the world, we need justice first.

How will you celebrate Law Day? For some ideas, visit the Law Day web site.

My series on “Bridging the divide between lawyers and mediators” continues with a look at the advantages that mediation offers attorneys.

*****

Alternative dispute resolution (ADR) is here to stay. Courts refer litigants to it or may even require it, more businesses include it in contractual agreements, and savvy clients demand it.

Mediation in particular has grown in popularity as a time-saving, cost-effective way to resolve disputes in mutually satisfying ways and get people back to work, back to business, or back to their lives.

Regardless of the stage of a dispute–whether it’s already in litigation or not there yet–mediation can make a difference. But what specifically does mediation offer the lawyer? Quite a lot, as it turns out:

1. A framework to negotiate.

Back in the day when I was in law school, we were taught trial skills. This was deeply ironic, since it quickly became apparent when I began work as a lawyer that the real focus of my practice wouldn’t be trial at all. The real focus was negotiation–bargaining with the other side to reach settlement. The problem though is that most of us don’t have any real training in negotiation, and consequently we don’t always do it very well. We treat negotiation as a take-no-prisoners death match, or we come to the table expecting to give a little, get a little, and both walk away equally unhappy. The first of these approaches is notorious for damaging trust and destroying good will. And both these approaches leave value on the table and stifle creativity in designing settlement options.

Here’s where a mediator can help. The best mediators are negotiation experts who understand how to turn the parties into more effective negotiators. Mediation is not about holding hands and singing “Kumbaya”. It’s about getting your interests met and maximizing your gain–yours and the other side’s. If you don’t want to leave value on the table, if satisfaction counts, hire a mediator who understands negotiation.

2. Focus and structure.

Good mediators are skilled facilitators who run a mediation like an efficient business meeting. They have the ability to cut through the sparring, posturing, and argumentativeness to help parties get down to business. They push parties to develop an agenda, identify key interests, and create a realistic action plan which both can commit to and implement.

3. Reality testing for clients.

One of the challenges attorneys can face is the client with unrealistic expectations about the value of their cases or the likelihood of success at trial. Mediation allows clients a first-hand glimpse into the strengths of the case of the opposing side or gives a preview of how sympathetic a plaintiff will be in court. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis–which can make settlement seem far more attractive than the alternatives away from the table.

4. Reality testing for the other side.

Mediators of course will be asking the hard questions of all sides in a dispute, not just the one you happen to be on.

5. Overcoming barriers to agreement.

Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It’s part of our job description.

6. Negotiation skills you can use.

There’s no reason you can’t raid a mediator’s toolbox. You can learn to become a more effective negotiator and problem-solver. Take a negotiation training or hire a dispute resolution professional to design an onsite negotiation training for your law firm. Take a mediation training yourself to gain an insider’s view of the process and insights you can pass on to your clients to help them–and you–make the most of mediation.

7. Greater satisfaction for your client.

What’s not to like about a process that can save your client time and money and enable them to walk away with a solution tailor-made to meet their interests? In addition, in a time when ADR will be increasingly available and not less, being conversant in ADR and negotiation can give you a competitive edge. It’s one more benefit you can offer your clients.

And that’s a win-win for everyone.

I begin my series on “Bridging the divide between lawyers and mediators” in contemplation of the rule of law–what has been described as “the bulwark of our democracy”. Law after all stands at the center of our political and civic lives. It is the backbone of our political systems, provides certainty to our commercial transactions, reduces arbitrariness, offers recourse to the wronged, and ensures equality and individual liberties.

For any of us to appreciate the work that lawyers do, we need to begin by appreciating the law itself.

* * * * *

Earlier this week the U.S. observed Martin Luther King Day, when virtually the whole nation pays homage to key elements of the rule of law–the importance of justice and the value of civil liberties in a democratic society–or at least pays lip service to those things. The problem though with holidays like this is that for one day the words “liberty” and “justice” are on everyone’s lips. But, like the words “peace” and “good will” at Christmas, on the following day they seem conveniently forgotten.

Here in post-9/11 America, the rule of law has really taken it on the chin.

Political leaders have threatened or taken steps to strip courts of jurisdiction to hear certain kinds of cases. Most notoriously, last year federal courts lost the authority to hear challenges by foreign nationals to challenge their detentions as terror suspects.

As anger at “activist judges” spreads, death threats against judges for controversial decisions are on the rise. Attacks on judicial independence are increasingly common–consider for example South Dakota’s Amendment E which would have stripped judges of their immunity to allow lawsuits against them by dissatisfied litigants. Meanwhile, just about everyone these days hates lawyers.

That’s the state of the rule of law in the 21st century.

For just a moment, let’s wind back the clock to a time almost half a century earlier when the rule of law actually earned its own special day of recognition: Law Day, May 1, a day proclaimed by President Dwight Eisenhower in 1958 to recognize and honor the rule of law.

I invite you to read the text of the 1958 radio broadcast by then American Bar Association president Charles Rhyne announcing the enactment of Law Day. At the time Rhyne spoke these words, Communism was the political threat du jour. Therefore as you read the text of the broadcast replace the words “Communism” and “Communist” with their 21st century analogues. And as you do so, try very hard if you can to imagine the current White House administration, members of Congress, and state and local politicians throughout the U.S. affirming Rhyne’s words. Be sure to watch out for the following language:

In America law reigns supreme. No man in our Country is above law, not even the President of the United States…The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship…

The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people…

In our country ignorance of the value of law in international relations and what it could do for the people of the world is appalling. A major purpose of “Law Day-U.S.A.” is therefore to demonstrate to our people that the need for law in the world community is the greatest gap in the growing structure of civilization…

Say it loud: I’m a lawyer and I’m proud.

Coming up next in this series: “What mediators can do for lawyers”.

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.

* * * * *
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

The Internet is a place of continuous discovery. At once marketplace, library, and public square, its wealth of voices, viewpoints, and ideas never ceases to delight and enlighten me.

Although the pleasures of new discoveries are great, there are places on the web that I find myself returning to often, just as any of us do in the real world we inhabit. One of these for me is the blog Idealawg, published by Stephanie West Allen. With an original voice, this blog explores and reveals the art within the practice of law. It skillfully traverses ground as well that mediators will feel at home in–idea productivity, restorative justice, conflict resolution, client relations, and, of course, mediation.

This fall Stephanie introduced a new feature, Legal Highlights–interviews with members of the legal profession aimed at putting the focus on what’s right and what’s working with the legal profession and justice. As Stephanie explains:

One of my goals with Legal Highlights is to balance out, perhaps round out, all that we read and hear about what’s wrong with the legal profession and system. With the Highlights, let’s focus on the uplifting, the affirmative, the effective, the professional, the gratified, the decent, the good.

Stephanie honored me recently by inviting me to participate in a Legal Highlights interview–the fourth one in this series. You can read it here.

(Thank you, Stephanie–and congratulations on creating such a fine resource for dispute resolution professionals.)

In “Consequences of Power,” an article to appear in the upcoming Harvard Negotiation Law Review, Vol. XII, 2007, and available as a PDF download at the Social Science Research Network, Tamara Relis, a postdoctoral research fellow at Columbia Law School and the London School of Economics Department of Law, reports on the results of a survey and analysis of litigation-track mediation in medical malpractice cases.

Relis finds evidentiary support for the value of bringing plaintiffs and defendants face to face, despite the efforts of counsel to keep them apart. Her findings reveal the disconnect between attorneys’ objectives and those of their clients and shows that plaintiffs and defendants are more closely aligned than one might suppose, seeking similar outcomes and desiring above all the opportunity to communicate. And Relis sees ample evidence for what mediators have long known from experience, namely that mediation meets needs beyond those which the legal system can remedy, something other than compensation or a favorable verdict. Mediation provides what Relis calls “human benefits”–understanding, forgiveness, empowerment, or merely the opportunity to be heard.

For the abstract and a link to the download in PDF, please visit the Social Science Research Network web site.

Technorati tags: mediation, law

Just a few days ago the legal blogosphere was abuzz with the news that a federal judge in Florida had ordered two bickering attorneys to settle their differences playground-style: with a game of rock, paper, scissors. The judge mockingly described it as a new form of alternative dispute resolution.

Last week blogger Ernie Svenson invited readers to take a sobering look at what this all portends for the contemporary U.S. legal system: “Hell, when a federal judge has to tell the attorneys to use a child’s game to resolve their disputes then you know the system is completely broken.”

He’s right of course. Personally I have to wonder what their clients had to say about this (particularly when they see the bill). And as an attorney myself I have to ask, is this really the best that these lawyers could offer? An arbitrary outcome resulting from mere chance, instead of a resolution based on law, reason, and clients’ needs? And is this the business model that attorneys really want to practice?

Surely this is the last thing lawyers need right now–public confirmation that lawyers are useless at resolving disputes. Lawyers have a serious image problem. And current business practices are keeping potential clients away.

Hell, they’re not just keeping clients away, they’re driving them off in hordes. Straight to us mediators.

If you’re interested in hearing what clients have to say about attorneys, gather round. I can tell you what they’re saying to mediators like me.

Many of the people I speak to who come to mediation do so because they see themselves as refugees fleeing from a tyrannical legal system. Often they arrive with stories of attorneys more concerned with racking up billable hours than helping clients conserve assets and maximize gains. Attorneys who insisted that they should “go for the jugular” when really all they wanted to do was to remain on friendly terms with a business partner, neighbor, or soon-to-be-former spouse. Attorneys who didn’t listen or railroaded them into decisions that they couldn’t live with later. Attorneys whose combative styles cost clients money and relationships.

I’m an attorney myself. Believe me, I know that legal advice can save people time, money, and aggravation, and protects them from making uninformed decisions or unwise choices. But despite my best efforts to counter these negative perceptions, these callers remain skeptical that attorneys have anything of value to offer them. They find it far easier to believe the worst of attorneys than the best.

Some of these stories I hear are based on speculation and conjecture — on the experiences of a friend of a friend of a friend, on third-and fourth-hand stories passed on from co-workers, acquaintances, distant relations. These are urban legends which gain power and credibility in the retelling and convince the listeners that attorneys are neither helpers nor healers.

However, what is sad for our profession is the fact that the vast majority of these stories are the result of direct, personal experience. They are real. They happened.

But regardless of the source of these perceptions, the fact is that attorneys have a huge public relations problem.

Sure, we can lay some of the blame on ambulance chasers and the tort reform crowd–they’re both in opposite camps but neither one of them is doing us any good. We can point our fingers at the media which regularly vilify attorneys and rarely report on the important contributions that attorneys make in the service of law and justice.

But there’s also personal responsibility as well. And we attorneys had better start taking a long, hard look at the way we serve our clients and what our business practices have to say about us and our profession.

Better yet, keep it up. Keep antagonizing those clients.

Mediators everywhere will be grateful for the business.

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation