If judges are sometimes too judgmental, and if attorneys sometimes have trouble shedding their role as advocates, then the ideal mediator may be a non-lawyer. Non-lawyers bring to the table whatever training they may have as counselors, coaches, social workers, therapists, businesspeople, or teachers. Or they could be part of a growing cadre of people specifically trained in the arts of negotiation and peacemaking. They should be able to see beyond the narrow legal problems of the participants, and deal with their emotional, financial or other interests. Having grown up with a psychiatrist and a social worker for parents, and having observed some counselors at work, I have a lot of respect for people in the mental health field. They have developed or have received extensive training in many of the techniques that mediators of legal disputes attempt to put to use. In some ways, a licensed psychologist or social worker might be considered a true expert, while an attorney or judge acting as a mediator could be viewed as an amateur in using the techniques that may lead to a successful resolution of a dispute.
Non-lawyer mediators may not be in as good a position to provide evaluations of the potential value of a lawsuit in court, or of the costs and other pitfalls of litigation. They may not even fully understand the issues that would be decisive in resolving a legal dispute in court. But in many cases, parties do not expect to get an opinion on those issues at the mediation. They should be able to rely on their own attorney for that. (See this post from the always-reliable Victoria Pynchon explaining that it’s primarily the parties’ attorneys’ job to provide an assessment of their chances at trial.) Often the mediator’s job is to support and get the parties to understand their own attorneys’ views of the costs and benefits of continued litigation, and perhaps also to listen to the opposing party’s attorney’s evaluation. Offering a third opinion of the value of the case may be confusing and can even be counter-productive. So if the parties go to mediation without needing or expecting an expert evaluation of the case, they should not be disappointed if the mediator does not provide one.
The problem for non-lawyer mediators is that parties who have been referred to mediation for the purpose of settling a lawsuit, are often still expecting a quasi-judicial resolution. Often they are not ready for something that sounds too much like touchy-feely therapy. Divorcing couples might have some experience with couples counseling, and may be more likely to appreciate a more therapeutic approach to mediating the issues in a divorce, but even they may prefer a more hard-headed, business-like consideration of the costs and risks of trial vs. settlement, when it comes to the task of making a business-like decision about settling their legal claims against each other. Business people and insurance companies are likely to have even more hesitation about submitting to a process that delves into any issues beyond the straightforward assessment of the value of a lawsuit. As a practical matter, non-lawyers also seem to have more trouble getting accepted for some court-annexed mediation programs, and getting lawyers to refer cases to them. (Here’s a poignant complaint from mediator Barry Simon about the difficulty of building a mediation career as a non-lawyer. It’s not so easy for lawyers or retired judges either!) As the process of mediation becomes better understood, however, one would expect that parties seeking mediation would be less concerned about whether the mediator studied contracts or knows how to try a case, and more concerned about their effectiveness in resolving disputes.
(James Gandolfini and Lorraine Bracco in The Sopranos)