Mediating between law and mediation: time for both sides to declare a cease-fire

Time for ceasefire between mediation and lawLast week I got a phone call from a third-year law student interested in learning more about mediation. Toward the end of our conversation, she told me that her fellow students mocked her interest in mediation practice, dismissing it as “touchy-feely, Kumbaya-singing crap”.

Despite the fact that 21st century legal practice is going to demand more of lawyers than the moot courtroom skills that the first year drills into law students, these students have absorbed the message that negotiation and problem solving hold little value for the practicing attorney. It made me wonder what exactly their law school is teaching them.

Unfortunately, this contempt for and suspicion of mediation is not an anomaly in the law, although fortunately, too, I encounter it with less and less frequency these days as more lawyers are trained in mediation and more law schools teach mediation advocacy and negotiation skills.

Mediators, however, all too often show a similar disdain for litigation, as fellow blogger and mediator Chris Annunziata pointed out just like week, forgetting that the “alternative” in “alternative dispute resolution” denotes choice, and that sometimes court, not mediation, can be the best choice for disputants.

Bridging the divide between lawyers and mediators“, a series of posts I wrote two years ago, confronted this mutual distrust. As introduction I wrote,

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…

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.

I think it’s definitely time to rerun this series here on Mediation Channel. Law students, lawyers, and mediators, take note:

Intro: Bridging the divide

Part 1: Valuing the rule of law

Part 2: What mediators can do for lawyers

Part 3: What lawyers can do for mediators

6 responses to “Mediating between law and mediation: time for both sides to declare a cease-fire

  1. I was at a meeting of a community group deciding which of us would be among the six to meet with the mayor of Boston. One person put forth my name saying that my skills would be valuable in the meeting.
    Then, someone I didn’t really know said, “You’re a mediator right? We’ll, no offense but we don’t need a mediator. We need tough negotiator.”
    And what was his profession? Lawyer.
    In the end I did meet with the mayor. As we walked into his office I noticed two very cool guitars by his desk and we chatted about them for a while. The meeting proceeded in a friendly, collaborative manner. So much for toughness.

  2. Pingback: Mediation Naysayers Abound Despite Popularity | CKA Mediation and Arbitration Blog

  3. DB, great to have you drop by, as always. Yup, the assumption that mediators are just a bunch of Kumbaya-singing, group-hugging sissies has always bugged me. And good for you for demonstrating your effectiveness and proving the naysayers wrong.

  4. Diane – In public policy practice, I’ve certainly observed the contempt for mediation that some attorneys have – often based on very superficial knowledge of what collaboration is all about. But there are knowledgeable criticisms by lawyers of mediation and similar processes in the public policy field that need to be addressed. Unfortunately these are often glossed over or refuted out of concern to avoid “trashing the field” by many colleagues. I applaud your effort to mediate between the two professions because there is a great deal of misinformation and hostility rather than an attempt to look on them as separate strategies for arriving at meeting clients’ needs.

    Fine work, Diane. — John

  5. Nice try Diane, I respect you for the “calling” to do so, but… until the ABA changes their tune and stops trying to use the law as a lever to push out “non-lawyers” the “war” will never end.

  6. John, thanks. In my experience, I’ve seen the trash talk come from both sides. A couple of years ago I led a training with two colleagues on “Mediating the Legal Dispute”. Our first day provided an orientation to the legal system and to the rules of attorney professional conduct to mediators who were not attorneys. We were dismayed to hear the depth of the animosity many felt towards lawyers — and also to uncover the depth of misunderstanding and lack of knowledge about the law and lawyers. By the end of the day, those mediators had a very different perspective. It does cut both ways.

    I do appreciate your kind words, John, and thank you for your encouragement.

    Clayton, I would be grateful if you could show me some specifics. The ABA did issue in February 2002 a Resolution on Mediation and the Unauthorized Practice of Law which made clear that mediation does not constitute the practice of law, a victory for mediators who are not lawyers. (I know that some lawyers remain unpersuaded of course.) What examples can you give me of the ABA’s efforts to push out those who are not lawyers from the mediation profession? Thanks, Clayton. That would helpful. If that’s going on, let’s bring it out in the open.