What does a mediation attorney do? Almost everyone has been a mediator. It’s true. You have been a mediator if you have stepped into a dispute that had nothing to do with you and tried to help friends, family members, neighbors, or coworkers resolve their differences. The custom of using a respected elder to help disputants reach an agreement has been going on for thousands of years. A mediation session is just something we do as social creatures.
The practice of mediation as a profession has been growing for at least half a century. Most of the time, mediation service practitioners and consumers have debated what qualifications professional mediators should require. Some argue that requiring licensure will freeze the mediation process into past patterns, stifling growth and creativity.
Others insist that some qualification is necessary to protect the public from unscrupulous and untrained charlatans.
Neutral Third-Party Qualifications
One of the more hotly contested issues surrounding the question of qualifications for mediators is whether mediators should be attorneys. In many jurisdictions, a law degree is required for inclusion on a list of court-approved mediators. While most courts allow disputants to use any mediator, non-attorney mediators are often not even considered by court-referred parties. For most people (and their attorneys), it is easier to pick a mediator from the court-approved list than to do their research.
The standard requirement by court-annexed mediation programs that approve mediators who are experienced mediation attorneys rests on two disputed assumptions. The first is m that the mediation process is a natural extension of legal education and practice, readily picked up by attorneys.
The second is that because most legal disputes take place against a legal backdrop, or at least have lawsuits as their likely alternative, legal expertise is required to successfully resolve them and ensure justice, especially in cases where one or more parties do not have attorneys. Are either or both of these assumptions correct?
Is mediation a natural extension of legal education and training?
In 1989, the Society of Professionals in Dispute Resolution’s (SPIDR) Commission on Qualifications found that while training obtained in pursuing different degrees can aid in dispute resolution, no degree guarantees expertise as a neutral. Furthermore, it was the Society’s position that alternative methods of demonstrating competence degrees would foreclose alternative avenues of demonstrating legal dispute competence, such as prior successful mediations. SPIDR standards require no degree for service as a neutral.
Attorneys are trained in pattern recognition. They look at facts to determine whether those fags fit in a “box“ that defines a crime or civil wrong. Emotions are facts, just like any other. Some of them affect the outcome of cases; some don’t. If they don’t, they are deemed “Irrelevant“ and disregarded.
Working late exposes them to tragedy like other professions, and attorneys emotionally distance themselves. In 1985, the author was a first-year law student. The Challenger space shuttle exploded on live television. Not long afterward, this national disaster was being analyzed as a product liability problem, negligence, and wrongful death — forced into little mental boxes so it could be dealt with dispassionately. The emotional content was drained from it.
More experienced attorneys allow themselves to feel some empathy, both because juries don’t like robots and because they see the real impact the Intellectual problem in the file has on their clients. But it is tough to break that original habit of distance.
Mediation is about more than money.
The mediation process and settlement agreement are not always about adequately weighing the evidence to determine the legal rights of a monetary offer.
*If it were, it would not be true that a sincere apology Can reduce or even eliminate demands for damages. But research proves it is true.
*If it were, I would never have experienced an appellate mediation In which the appellant and respondent could not close a gap Of $1000 between the highest offer at the lowest demand. Consequently, we will spend tens of thousands of dollars of their own money on an appeal. Sadly, I did experience it. Ironically, the appellant had written a book on settlement. He said he knew he was being unreasonable but couldn’t face his little sister if he didn’t do better than the last offer.
*If it were, presenting a different future vision wouldn’t matter. But one of the most compelling questions a mediator can ask is, “How would your life be different if it weren’t for this dispute? What could you devote that time and treasure to?” That alternative future vision becomes something to work for, a non-monetary reason to end the conflict.
Our past training affects our approach to mediation.
To determine the influence of attorneys on mediation, researchers compared the divorce mediation process in Georgia with other parts of the U.S. In Georgia, mediation and settlement occur more frequently because there is a greater emphasis on the outcome (agreement) than on process concerns, like party satisfaction. Given a hypothetical case involving a party with a “bad temper,” very few Georgia mediators suspected a possibly abusive relationship.
While some helped the parties define their issues, most of the legally trained Georgia mediators defined relevant matters for the parties. Some Georgia mediation sessions were structured like litigation. The researchers attributed these differences to the fact that divorce mediators in Georgia are practicing attorneys.
Different disciplines have different views of conflict. Therefore, mediation means different things to mediators with different backgrounds. Researchers observed the heads of seventeen family mediation services and interviewed them about their theoretical perspectives. They identified their biases. The researchers concluded, “Prior professional experience is just as likely to be an impediment as an asset to learning mediation.”
Another study found that lawyer mediators stress legal knowledge and skills, such as learning the facts, while social workers emphasize conflict resolution theory, interviewing, and problem-solving. This was true even when both groups were exposed to both types of content in their mediation training.
Mediation Skills & Process
When attorney-mediators emphasize clarifying the facts at the expense of the relationship and communication issues, they may see their legal expertise as the key to settlement. When this happens, creative, more profound resolutions are frequently missed. Building opportunities and preserving or repairing relationships to the parties’ mutual advantage aren’t explored or fleshed out. Why? Because although life isn’t a competition, legal education makes it seem like one.
Attorneys still need extensive training in mediation after law school. Legal education fails to sensitize, and may even desensitize, lawyers to the emotional dimensions and hidden agendas involved in the search for adversarial solutions to their problems. The case method causes students to examine legal issues abstractly as if they were separated from human nature. At the appellate level, even the most emotional human issues are distilled into pure questions of family law and hypothetical facts despite the reality that few clients’ problems are devoid of emotional content.
To answer the question posed: No, the mediation process is not a natural extension of the practice of legal training and experience. Mediation does not fit conflict into boxes or limit what can be considered by a party or why. Emotions and creative remedies can be considered. The repair of “irrelevant” relationships can be undertaken. The court is a zero-sum game.
While transactional attorneys make deals, their training in an inherently adversarial system likely pulls them away from collaborating and towards competing. Put simply, dispute resolution requires skills and knowledge not taught by the standard family law school curriculum.
Is legal knowledge necessary to achieve resolution or ensure justice?
Whether legal knowledge is necessary to resolve a dispute depends on the barriers to settlement and the possible incentives to settle. The parties’ differing interpretation of the family law is the main obstacle to settlement, so they may be looking to the mediator as an impartial expert to give an unbiased opinion about the strength or weakness of the case. In this situation, legal knowledge is required. (Some may say that the parties seek an early neutral evaluation.)
However, some mediation sessions are court-ordered, and the parties lack the sophistication and resources to obtain a separate ENE. Parties often seek an evaluative mediation that exposes the weakness of both sides’ cases or the relative strengths. While there is an argument that it is impossible to evaluate without favoring one side or the other, this is an argument about the relative strength of each particular case. It is not partial to tell B that A has a better case if that is true, especially if both parties were aware of the possibility.
Some codes of ethics distinguish between giving legal information and legal advice. However, as other commentators have noted, it is easy to present advice as information and sometimes difficult to differentiate between the two.
Of course, a legal evaluation may not be necessary if the basis for settlement is not legal. Examples are economic need, litigation fatigue, preservation of a meaningful relationship, or an apology. So, the answer to the question posed is, “It depends.“
Final Thoughts
At times, legal education and experience benefit the parties. At other times, they are not needed at all. However, in either case, the attorney-mediator should obtain further training in mediation to counter the inherently competitive, non-collaborative bias in his or her background.
Contact ADR Times today to learn more about the role of mediation attorneys, mediation requirements, and more!
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