When acting as a mediator, I try to develop a level of trust and personal connection with the parties who come to me for assistance. So I might talk about my family, or my hobbies, or my professional background and experience. Trying to establish a rapport with the parties’ attorneys, I sometimes find myself listening to and telling war stories about experiences with various judges, or certain types of cases. While sharing those stories can be a useful way of talking about the case at issue, there is a danger in doing too much of that. The danger is that the parties sometimes get left out of the process. Parties find themselves mystified by too much shop talk. They may feel that instead of addressing their concerns, the technicians in the room are dissecting their case in the impersonal way that a surgeon operates on a patient, or a mechanic works on a car.
Lawyers bring a host of advantages as mediators of litigated disputes. We speak the same language spoken by the parties’ attorneys. We have experience in the art of presenting legal and factual issues to the court. We have a good sense of the likelihood of prevailing on those issues at trial. And we know what is in store for the parties if they do not settle the case. Lawyers can use their advocacy skills to advantage in the shuttle diplomacy of mediation, helping each party frame their own case in a way that may be persuasive to the other side. Mediators also argue the other side’s case to the party they are addressing, in a way that relieves a burden on the party’s own counsel. Instead of acting as a neutral, the mediator acts as an advocate for each side in turn. Lawyers are of course naturals at being able to argue both sides of the same issue. That’s what we have been trained to do since law school. But our ability to do that, and our heavy reliance on the caucus process (many mediators currently keep parties in separate rooms from the outset of a mediation) may thwart the parties from the face-to-face communication that may be necessary to achieve true understanding or reconciliation.
In researching this post, I came across an interview with a former mentor and employer, Jim Alfini, who said that the system’s over-reliance on attorney-mediators can reduce the role of the actual disputing parties. “This mutes the parties and returns it to a lawyer-centric, not party-centric system.” Sometimes the parties, and especially their attorneys, prefer to control the process in that way, and are reluctant to allow their clients to reveal too much of themselves to the other side. But the parties’ advocates, as well as the mediator, need to ask themselves whether stifling the parties, and treating mediation as a formalized legal proceeding, may prevent mediation from fulfilling its true potential.
Lawyers also need to know when to put aside their training as advocates to find out what really caused the parties’ conflict, and what has kept the conflict from being resolved. An article by Cris Currie cites studies showing that lawyer-mediators are more inclined to focus on the facts and legal issues involved in a dispute, whereas mediators trained in fields like social work are more apt to try to resolve a dispute by interviewing the participants and developing strategies for solving their perceived problems. He concludes that mediation is not a natural outgrowth of the practice of law, and that lawyers need to learn a different, more collaborative method of problem-solving in order to become successful mediators. Mediation allows us to get beyond the sometimes superficial concerns of the law to delve into more deep-seated and complex causes of human conflict. Lawyers need to become more comfortable with doing that.
(the law firm of McKenzie, Brackman, Chaney and Kuzak)