Innovative Conflict Resolution

Because of my background resolving litigated insurance claims, my experience with mediators was that they were almost exclusively attorneys, and often ex-judges to boot.  In fact, I was somewhat taken aback when I first learned that a particular mediator was not, in fact, an attorney.  I was assured, however, that “he was still a good mediator.”  While I am not an attorney, my 20+ years experience as an advocate, working closely with attorneys on a daily basis, did influence my thinking considerably, even to the point where I would not have considered myself qualified to act as a mediator.  (This, obviously, has changed!)

My perspective today has changed significantly, as I have learned more about mediation theory and have met many fine mediators who do not have law degrees.  I also understand now that mediation can be – and I think should be – so much more than what I typically experienced.

Asking the question, “Should mediators be attorneys?” is not meant to imply that attorneys can not make fine mediators.  I know a great many fine attorney-mediators, people I greatly respect. I also know many for whom I have very little respect.  Perhaps the question can be rephrased, “Is being an attorney irrelevant to being a mediator,” to which my answer would be an emphatic “yes.”  Unfortunately, in some states it has been legislated that a mediator must in fact be an attorney to appear on a court-approved list, which greatly limits the opportunities for non-attorney mediators.  The public, I believe, suffers for this.

An article on the Mediate.com website states:

The rationale for requiring a law degree and legal experience rests on two assumptions. First it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented.

The article goes on to point out that “mediation is not a natural extension of the practice of law.”  In fact, the two roles are often not compatible at all.  Most attorneys are  advocates; that is, it is their job to act solely in the interest of their clients.  They are by training and habit inclined to take sides and focus on legal issues that support their case. While a good attorney will be able to see both sides of any dispute,  being immersed in one side of a dispute often hinders their ability to be objective.

A mediator, on the other hand, is committed to being impartial: he is not to take sides, and is not to make judgments that will impact his impartiality.  It is often difficult for an attorney, who is used to specializing in either plaintiff or defense cases, to lose his or her habit of advocacy.   Consequently, many attorney/mediators continue to lean either to one side or the other – either plaintiff or defendant.  When choosing mediators, attorneys will look for those with the appropriate experience, not only to understand the case, but who would tend to take the appropriate position and subsequently put greater pressure on the other side.

As the above-referenced article also points out, attorneys also tend to focus on the facts and the legal issues involved; that’s what attorneys do.  A mediator, however, is not necessarily focused on getting a resolution that he/she thinks is the right one, but is rather focused on getting the parties to come to an agreement with which they are both satisfied, and optimally, one which is considered “win-win.”  Mediation is ideally a collaborative process, not one in which parties are pressured to make a deal.

I don’t know how many times I have heard mediators (who are/were attorneys or judges in past lives) remark that if both sides are unhappy with a settlement, then it was probably fair (this is said to encourage the grumbling parties as they leave the mediation).  What this tells me is that the mediator looked at the mediation as a “zero-sum” situation, where the only “fair” result is that neither party gets what they want.  The parties were probably never given an opportunity to explore creative, potentially win-win options, and were put in positions where the best they could do was lose half-way.

Again, many attorneys are both willing and able to embrace the significant paradigm shift from advocate to neutral.  However, the attorney skill-set is not the ideal skill-set for a mediator. While nothing should preclude an attorney from becoming a mediator, there is also no reason why it should be necessary for a mediator to also be an attorney.