What about clients? Time at last to consider what they want from mediation

Time to consider client needs in mediation

At the recent ABA Section on Dispute Resolution spring meeting, I attended one program whose title promised an answer to the fascinating question “What Do Litigators Want?” when it comes to mediator practices.

All well and good, but the question I was most interested in was very different: “What do your clients want? ”

Alas, I never got a straight answer, although the guy sitting behind me whispered his thanks in my ear and said, “I’m glad you asked that. I’m a client myself, and I can tell you right now, my lawyers don’t have a clue what I want.”

So what can we – attorneys and mediators alike – do to help clients choose and participate fully and meaningfully in the right process for them and their dispute? Here’s my modest proposal, with a tip of the hat to Joseph P. McMahon, Leonard Riskin, and Nancy Welsh:

  • Start with the premise that informed consent is vital for all participants – for lawyers, for clients, and for mediators. And let us all remember to whom the dispute and ultimate resolution belong – not the lawyers, not the mediator, but the client (remember them, anybody?).
  • Educate lawyers and other likely consumers of ADR services fully about the various philosophies of mediation practice, providing them with accurate information about the benefits and drawbacks of each.
  • Insist that mediators themselves be well informed about the varieties of practice in their own field so that they can in turn provide accurate information to prospective clients – and to journalists who come calling for interviews.
  • Develop better systems for intake, to include an assessment of the conflict that can guide the design of a process best suited for the parties and the issues and that identifies the parties necessary for resolution before scheduling the mediation.
  • Mediators can emphasize the importance of preparation to lawyers and their clients; lawyers can do their part to encourage their client’s knowledgeable, fully informed participation.
  • Allow clients full say in shaping the process and defining the issues to be sure that mediation addresses all the concerns relevant to them and to the resolution of their dispute, not merely the legal ones.

That would at least be a start. If you have other ideas, by all means, weigh in. I’m all ears.

(With apologies to the gang at everybody’s favorite client-centered blog, What About Clients?)

9 responses to “What about clients? Time at last to consider what they want from mediation

  1. Hey Diane,
    Outstanding and concise. I would also add one single yet defining point to your points. Let “clients” know it’s okay to “mentally divorce” themselves from traditionally accepted and ingrained legal methods of resolving issues. I’m getting more and more success by bringing it to the attention of participants that they can just “forget” the legal process and structure and come to a more “qualitative” and genuine “peaceful” result by stepping out of a structure that has “polarization” built into it from the start. The method for resolving disputes using legal processes is so ingrained people simply can’t get “outside the box” and consider “alternatives”. What’s worse, terms like “mediation” have the same connotation at arbitration or even “private trial” (as someone once told me) and so discussions with “consumers” about evaluative versus facilitative may well be “over their heads” until they are educated and briefed towards having an “alternative” mind set about solving, not just their current issue, but issues over the long term in American society.

  2. Diane Levin

    Clayton, thanks kindly for your comment and particularly for the reminder that we always have the option to “think outside the court”.

  3. Diane,

    Too funny how you never got a straight answer.

    Slightly off topic, but it is great to see the coverage all the bloggers have given the ABA Spring Conference… perhaps there will be something, anything on blogging or Web 2.0 in San Fran next year?

  4. Diane Levin

    Hi, Jeff! Yeah, I know, interesting how the panel evaded my question. I think though that I may have gotten the real answer from the client in the row behind me.

    I hope that next year in San Francisco maybe, just maybe, there’ll be something on Web 2.0. In a way I’m not surprised that blogging and social media got no attention at the spring meeting in NYC. Not when an article last year in Dispute Resolution magazine, musing on big changes in the ADR field over the last several decades, identified email as the Hot Big Thing. Yipes! Hey, maybe you, me, Geoff Sharp and Vickie Pynchon can submit a proposal together – a panel discussion on blogging, Twitter, and whatever surprises social media will have in store for us a year from now.

    The best part of NYC was meeting people like you in person, Jeff. It’s why I came. Steve and I were really glad to connect with you. (He sends you his best, by the way. And so do I.)

  5. Ha!! Too funny considering email as the next big thing.

    “Hey, maybe you, me, Geoff Sharp and Vickie Pynchon can submit a proposal together – a panel discussion on blogging, Twitter, and whatever surprises social media will have in store for us a year from now.” -sounds good to me. at the very least, it’s worth further discussion between everyone.

  6. Diane Levin

    Definitely…to be continued…

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  8. Peter Huang

    Very interesting post. I think the second point that you raised is particularly important. In my experience, many experienced litigators appear to have a very shallow (and sometimes wildly inaccurate) impression of what mediation is about. For example, I’ve met a few that seem to actually equate mediation with “surrender” and despise the process accordingly.

  9. Diane Levin

    Peter, thanks for your comment. I think that the disdain for negotiation – both the assisted and unassisted kind – is in part responsible for the negative views about mediation. It’s not just litigators who think that way. It’s cultural, at least here in America, where negotiation is all too often perceived as a sign of weakness or even a moral failing.