Category Archives: Attorneys and Mediators

Master the geography of collaboration with the latest edition of The Complete Lawyer

the geography of collaboration

The latest edition of The Complete Lawyer is now available, putting the focus on “Doing Business Internationally.” The Complete Lawyer is a web-based magazine focusing on quality of life and career satisfaction for attorneys but with relevance for dispute resolution professionals as well.  It features a regular ADR column, “The Human Factor“, which explores ADR from the perspective of four attorneys who mediate – me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog .  The four of us alternate as writers.

It’s my turn this month with this particular installment of “The Human Factor”, where I invite readers to “Master the Geography of Collaboration.

The Complete Lawyer is published by Don Hutcheson, a good friend to the four of us and an enthusiastic supporter of “The Human Factor”. Thanks, Don, as always for your encouragement — we are all deeply grateful.

New issue of The Complete Lawyer and its ADR column, The Human Factor, now available

The Complete Lawyer

Now available online is the latest edition of The Complete Lawyer, a web-based magazine focusing on quality of life and career satisfaction for attorneys, along with its special ADR column, “The Human Factor“. This issue of The Complete Lawyer discusses “The Brave New World of Associates.”  Articles include “Jettison the Myth of Individualism“, reflecting on the importance of building social capital.

The Human Factor” focuses on ADR from the perspective of four attorneys who mediate – me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

After writing the first three columns together, each of us will now solo, starting with Gini Nelson, who takes this issue of “The Human Factor” to discuss how “Joining A New Firm Is Like Traveling To A Foreign Country“. Then it’ll be my turn for the following issue.

The Complete Lawyer is published by Don Hutcheson, who has been an enthusiastic supporter of “The Human Factor” from the beginning. Thanks, Don, for being such a good friend to the four of us.

Latest issue of The Complete Lawyer – and the ADR column "Human Factor" – now available

The Complete LawyerThe latest issue of The Complete Lawyer, an online journal focusing on quality of life and career satisfaction for attorneys, is now available — and along with it, its special ADR column, “The Human Factor“. This issue of The Complete Lawyer asks, “What’s your exit strategy?” and looks at how best to plan financially and emotionally for retirement.

The Human Factor“ focuses on ADR from the perspective of four attorneys who mediate – me and my three extraordinary colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

This time in “The Human Factor” the four of us discuss “What we have learned from mediation and negotiation that can have very broad application in your life and work“.

The Complete Lawyer is published by Don Hutcheson, to whom the four of us owe a debt of gratitude for allowing us a forum for our ideas. Thanks, Don.

Whose opinion counts: should clients, not lawyers, be the ones to evaluate mediators?

my two centsTwo respected thinkers in the mediation field, Leonard Riskin and Nancy Welsh, recently made available on the Social Science Research Network an advance copy of the law review article they co-authored, titled, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“. It takes a long, thoughtful look at the failure of court-connected mediation to fulfill its early promises and the extent to which it increasingly ignores the needs and interests of the clients at the heart of the case:

In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues – personal, psychological, relational, communitarian – disappear.

While mediation may meet the expectations of the repeat players, it fails to honor those of the one-shot player — the client. Riskin and Welsh describe what this signified for one couple struggling with tragedy who had sued a hospital and a doctor for negligence in the medical care provided at the time of the birth of their son:

The mediation processes failed to consider the [couple’s] mediation-related core concerns. The procedural choices made by the lawyers and (apparently) not questioned by the mediators — that Donna and Tony would not attend or speak in most of the joint sessions, and that they would have no role in deciding upon procedures or subjects of discussion for the mediation — ignored their mediation-related core concerns of autonomy, status, and role…In stark contrast, the mediations were structured to address the core concerns of the repeat players, particularly the lawyers, both within and outside the mediation.

While I happened to be working my way through this article, a colleague of mine forwarded to me a link to Positively Neutral, a web site that provides feedback about mediators and other neutrals. The web site declares that it “provides attorneys with what they care about most: the opinions of other lawyers who have used a specific neutral or expert in their case”.

With Riskin’s and Welsh’s points uppermost in my mind, I had to ask, what about the clients?

(Photo credit: Curtis Fletcher.)

The Complete Lawyer adds ADR column, "The Human Factor", written by four mediators

The Human Factor a new column on ADR at The Complete LawyerThe 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.

Myth busting: you don't have to be a lawyer to be a good mediator

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.

You be the judge: do retiring justices make the best neutrals?

Judges as neutralsAn 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.

Fighting words: using language to reduce or produce conflict

Peace or warAccording 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!

Myth or fact: Are attorneys the best mediators?

Are attorneys the best mediators?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.

Collaborative law: attorneys who mediate and negotiate, not litigate

negotiating through collaborative lawAs 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.