When they represent clients, advocates may be compared to gladiators doing battle with logic instead of a lance, statutes instead of swords, and rhetoric instead of physical force. Successful litigators routinely engage in clashes of confrontation and competition with other parties, advocates and judges. They are bound by rigid rules of professional responsibility, formal rules of advocacy, and highly technical rules of evidence. The procedural framework surrounding litigation is well-defined and the roles of the parties and judge are deeply rooted in tradition. The pageantry and spectacle of combat is replaced by the formality and majesty of the trial process.
Mediators, by contrast, take part in a dance of a different nature. The rules of engagement in mediation differ fundamentally from those of trial. The formalities of trial do not apply. Strict rules of evidence have no place. Long-term personal and business interests may be afforded equal or greater importance than the facts of the dispute or the applicable law. Emotions are considered to be directly relevant to the dispute. The roles, responsibilities and opportunities of the parties, advocates and neutral third party differ significantly. Specialised communication and negotiation skills and techniques are the primary tools of a mediator–instead of forceful rhetoric and penetrating arguments.
Lawyers who successfully undertake mediation training for the purpose of serving as mediators must be prepared to radically re-define their objectives, their role and their techniques. They must approach mediation training with an open mind and a willingness to learn the distinct differences between the processes of trial and mediation. They must be skilled at working within the framework of traditional rights and remedies and also ready to move beyond it. Lawyer-mediators will learn that mediation is more than a legal negotiation in a different package—mediation differs fundamentally in its procedural structure, terminology, objectives and techniques.
Mediation trainers, likewise, must be aware of the educational background and professional mindset of lawyers. Trainers must understand the lawyer’s perspective and successfully describe the differences in the role, duties and methods of mediators. For example, while the trial process is highly adversarial, the mediation process strikes a different balance encouraging adversaries to act in some ways as collaborators. Instead of looking for one-sided outcomes and opportunities to exploit the opponent’s weaknesses, mediators look for and cultivate opportunities for mutual gain by all parties. In trial, the goal is victory, while in mediation, the objective is harmony. In short, mediation trainers must face the challenge of teaching the gladiator to become a mediator.
It is noteworthy that mediation training can be beneficial for lawyers independent of their intent to establish a practice as a mediator. Formal mediation training can serve many purposes: cultivating general awareness of mediation as one alternative process of dispute resolution, preparing a person to serve as a mediator, preparing a person to serve as an advocate in the mediation process, and providing a person with additional skills and methods for dealing with everyday conflict at home, at work, and in the community. The skills and techniques that are part of mediation training can be adapted and transferable to any type of conflict. Lawyers can use them in the transactional arena (drafting contracts, setting salaries and terms of employment, negotiating leases), in litigation (negotiating settlements, resolving discovery disputes, negotiating medical liens, handling client fees and expenses), and law practice management (law firm governance, shareholder disputes, claims, policy-making).
This article will examine the challenges experienced by lawyers who are training to become mediators. Some of these challenges stem from deeply ingrained perspectives associated with legal training and experience. The “legal culture” shapes and informs a lawyer’s identity and the ways he or she views conflict. This article will suggest that identifying these perspectives is a crucial step in recognizing, working with, and ultimately broadening the “lawyer’s perspective” to include a “mediator’s perspective.”
1. The duty to represent clients zealously
History and the rules of professional responsibility dictate that a lawyer’s duty is toward one side of a dispute or transaction–his or her client. The attorney/client relationship is carefully defined, for once an attorney undertakes representation, he or she must protect and advance their client’s interests in a zealous manner. A lawyer is required to put the client’s interests ahead of their own. All the information that is generated during litigation is analysed in terms of its potential benefit or harm to the client. Strategic goals are set based upon the client’s legal rights. Though the purpose of the adversarial system is justice, the system can also result in tension between parties that may lead to deep-seated antagonism between advocates, their counterparts, and the parties.
A lawyer who is training to become a mediator may consciously or unconsciously transfer the concept of the attorney/client relationship and the duty toward clients to the mediation process. This could take the form of taking up the cause of one party or another by speaking on their behalf, losing the appearance of neutrality by advocating vigorously in support of one or more claims/defences/positions, and making private decisions about the merits of the dispute and favorable outcomes.
By contrast, a mediator does not represent one party or another in a dispute. The mediator does not have a duty of zealous advocacy on behalf of any one participant in the process. To this day, there is no single word that describes the relationship of the mediator to the participants in mediation. Not unlike a judge or an arbitrator, the mediator generally has no duty of representation toward any person who is involved in the mediation process, including named parties, attorneys, witnesses, expert witnesses and others. These ‘parties’ participate in mediation and the mediator may have identifiable general ethical duties toward them, but the mediator is not answerable directly to any party to the dispute in the same manner as a lawyer.
For lawyers who are training to become mediators, it may be helpful to shift their perspective concerning the identity of the client. Mediators have duties toward the participants and to the process. They protect the integrity of the mediation process through the careful use of techniques that promote a constructive dialogue and negotiation. In a balanced and neutral manner, a mediator explores facts, law, issues and interests to promote mutual understanding and resolution of the dispute. The mediator is a guardian of the mediation process itself rather than any individual party or their interests. If a party were to ask a mediator, ‘Whose side are you on?’ the Solomonic response might be, ‘I am neither for one party nor the other. My job is to assist everyone in figuring out whether there are favorable terms of agreement that can be reached after thoroughly considering the alternatives.’
2. The nature of mediation
Lawyers’ training and experience with dispute resolution generally is based upon their understanding of trial and arbitration, two adjudicative processes where the neutral judge/arbitrator controls both the process and outcome of the hearings. Alternatively, many lawyers frequently engage in the differently structured process of negotiation, with varying degrees of tactical and strategic success. In either case, the framework for traditional advocacy practices often consists of formal rules of court and professional responsibility or, alternatively, conventional negotiating tactics.
Adjudicative processes are, by nature, highly adversarial. They are rigidly structured, with pre-hearing conferences, opening statements, plaintiff’s case, defendant’s case, closing arguments, post-trial issues and possible appeal. The rules of evidence govern and are strictly applied. Information is introduced in the form of examination of witnesses and documents meeting specific evidentiary requirements. The temporal orientation of adjudicative processes where legal issues (versus equitable) are at stake is historical, e.g. Who did what to whom in the past? The focus is on fact-finding (discovery and rules of exclusion) and fault-finding (examination of conduct, deciding liability). Every manner of human conduct is reduced to dollars. Lawyers must advocate for their clients within this formal framework of traditional rights, remedies and procedures.
Alternatively, negotiation is a process used by many lawyers in an unstructured and spontaneous manner. Some lawyers are unaware that there are well-established negotiating principles and techniques that can be applied in a systematic manner, thereby producing relatively consistent and predictable results. Instead, they may ‘shoot from the hip’, drawing from a narrow frame of reference in terms of effective negotiating tactics.
Lawyers who are training to become mediators may approach the topic of mediation with an expectation that the mediation process is similar to adjudicative processes like arbitration and trial, which are structured, formal and exclusionary. They may actually feel uncomfortable with different procedures, a lower level of formality, and a high degree of procedural and remedial flexibility, all of which are present in mediation. Conversely, lawyers may believe that mediation is a process where there are few or no rules of practice, so mediation is viewed as a casual, disorganised and sporadically successful process.
The reality is that mediation shares some of the structure of formal adjudicative processes and it also provides parties with flexibility and freedom to negotiate in their best interests. Mediation is a voluntary structured negotiation process, with identifiable procedural stages, where a mediator assists the parties by using specialised communication and negotiation techniques. Mediation has both adversarial and collaborative features. In litigated disputes, a mediator carefully examines the factual background and may also have an evaluative role, analysing liability, costs of litigation, jury appeal of various clients and arguments, risk of losing at trial, potential jury verdict ranges, witness appearance, and alternatives to litigation.
The rules of evidence do not apply during mediation; no examination of witnesses takes place and rules of exclusion do not restrict the information that can be considered. In terms of temporal orientation, the mediation process focuses on the past (historical background of a dispute, actions and conduct of the parties, documents and other related information), present (the parties’ immediate circumstances, needs, and concerns), and the future (the parties’ long-term personal and business interests, future dealings between the parties, working out terms of agreement that present a stable and durable settlement that is within the ability of the parties to carry out, re-establishing or re-structuring the communication and relationship between parties).
Mediation is neither a fact-finding or fault-finding process; instead, mediation is a problem-solving process, which means that the emphasis is on exploring the possibility of working out a solution rather than only dwelling on the past and who is to blame. The parties in mediation are not restricted to money damages. They have the freedom to create monetary and/or non-monetary terms of agreement that are creative and non-traditional. Finally, the mediation process, itself, can be flexible procedurally, offering pre-mediation communications between the parties and the mediator, variations in the sequencing of the stages of mediation, sub-caucuses between various participants and interest groups in multi-party cases, location, timing and form.
3. Giving legal advice
A lawyer’s stock in trade is rendering sound legal advice and providing good counsel to their clients. The lawyer’s specialised formal legal training and experience provides him or her with a frame of reference for analysing and evaluating disputes. Clients ask for legal advice and they expect lawyers to provide it. The rendering of legal advice is a central and inherent part of a lawyer’s work, which suggests that lawyers will tend to move into an advice-giving mode when they are confronted with a legal issue, conflict, or claim. When a client asks, ‘What should I do?’, it is expected that a lawyer will formulate a well-considered response that consists of some variation of the following, ‘Based upon my analysis of the facts and the law, it is my considered opinion that you should do… .’ It is challenging, to say the least, to refrain from giving advice when that process has been a central part of law practice for a long time.
Mediators do not render legal advice to anyone because they are no one’s attorney. Rendering legal advice to any party would be stepping outside the role of a mediator. Rendering legal advice to one party and not another would violate the rule of neutrality and possibly create unfair advantages. Although mediation participants routinely ask for advice concerning legal issues (‘Don’t you agree that they’re at fault?’) and transactional issues (‘What should my next move be?’), mediators cannot render direct advice and simultaneously stay within their role as mediators. On questions of law, a mediator may be of assistance by independently evaluating an issue and providing their analysis, but they must stop short of advising the parties about future conduct or activities. On questions of negotiation, a mediator can solicit options from the parties and even identify options themselves, so long as they are not couched in terms of what a party ‘should do’. For example, in response to a question by a party about their next counter-offer, a mediator may say, ‘Based on the history of offers in this case, on the length of time we’ve been mediating, and on the atmosphere in the other room, I don’t think that moving incrementally at this point will generate a counter-offer from the other party. Something more may be necessary to move this negotiation along. If you were going to make another offer that was not a small move, what would you be willing to do?’
4. Thinking inside the box
Typically in adjudicative processes, lawyers confine their analysis to traditional rights and remedies. The framework of traditional rights and remedies is the intellectual ‘box’ within which lawyers operate. After many years of legal training and experience, lawyers have developed exceptional skill in logical thinking, e.g. analytical, rational, linear, deductive thinking. This skill, however, can be developed to a point where it reduces or virtually eliminates one’s ability to think creatively and intuitively.
Lawyers being trained as mediators will experience difficulty thinking in non-traditional ways about possible solutions. It is easy to fall back on traditional remedies, i.e., money. Experience has demonstrated that the more training and experience a lawyer has, the harder it is to do anything except to think logically. Creative thinking may seem to be unacceptably unstructured and vague when a lawyer as mediator is confronted with the question of what terms of agreement might be of value to the parties—other than or in addition to money. If a lawyer/mediator imposes the template of traditional rights and remedies on the parties in mediation, it could drastically limit the options for agreement that may be possible.
A mediator is trained to think logically (when analysing the facts, claims and legal issues) and laterally (when assisting the parties in developing terms of agreement that meet their most important interests). Lateral thinking is a form of thinking that is creative, non-linear, non-traditional and intuitive. Lateral thinking is an intellectual muscle that is used so rarely that it has often atrophied to the point of non-existence in lawyers and other professionals. Lateral thinking is a skill that can be identified and developed, once there is an understanding of what it is and an awareness of its value in the process of generating options for agreement. Mediators are flexible in that they are prepared to work with the parties in creating a traditional money-based agreement or in creating a non-traditional, integrative deal that incorporates a wide range of monetary and/or non-monetary terms.
Out beyond ideas of wrong doing and right doing,
There is a field,
I’ll meet you there.
When the soul lies down in that grass,
Ideas, language, even the words “each other,”
Don’t make any sense.
5. Responsibility for decision-making
Essentially, law practice is a service-oriented business. Lawyers assist people in conflict when the demands involve legal issues, claims and defences. People often self-select to become lawyers because they have an altruistic desire to help others who are in trouble or because they have experienced conflict themselves and they are aware of the stress and turmoil associated with conflict. Whether their motivation is based upon personal experience or the desire to help others, many lawyers are motivated by a desire to protect others and to serve their interests. Being a client’s ‘white knight’ can be professionally and personally rewarding.
Unfortunately, the desire to help may also coincide or morph into a desire to control or to ‘fix’ problems for others. Lawyers at times may interpret their duties to include ‘running interference’ for their clients, even where emotional confrontation may lead to understanding or personal healing. Lawyers may want to ‘step in’ to protect their clients, even at times where exposing vulnerabilities and discussion of deep personal issues may go to the heart of a conflict. Finally, lawyers may define their work in terms of taking responsibility for developing a final outcome, rather than asking their clients to share some of the responsibility for their conduct, making an effort to understand another person’s perspective, or taking responsibility for thinking of possible solutions that truly meet their own unique interests.
A mediator does not assume responsibility for fixing a dispute between parties. Conflict is viewed by mediators as a natural and normal outgrowth of human activity, differing interests, and the placement of differing value on certain things. A mediator does not ‘own’ the dispute—the parties do. The parties are the people who have to live with the consequences and long-term effects of a mediation process, whether or not the case is settled during mediation. A mediator, accordingly, is mindful of the parties’ desire to resolve disputes and ‘close the deal’, but is also aware of the primary importance of asking and allowing the parties to take responsibility for making their own decisions.
A mediator takes careful steps to ensure that the ‘centre’ of the process remains the parties by consulting and conferring with them every step along the way. Part of the problem-solving process involves understanding whether the parties are ready to move forward and to let go of the conflict. Another part of the process involves learning about the parties’ concerns and interests. Yet another part of the process involves generating options for agreement that meet the individual needs of the particular parties, which necessarily involves reliance on the parties and their own unique understanding of their needs and circumstances. Lawyer-mediators must, themselves, learn to let go of the desire to ‘fix’ problems for their clients and to allow the clients to find their own solutions through guided dialogues and structured interactions. Mediation presents an entirely different paradigm for resolving disputes that is fluid and flexible, while focusing consistently on the parties as the centre of the process.
Giving birth and nourishing,
Having without possessing,
Acting with no expectations,
Leading and not trying to control,
This is the supreme virtue.
6. Feelings are irrelevant
When is a party in civil trial allowed to vent their emotions in their own words and without the artificial and highly structured process of direct or cross-examination? When does the judge, jury or arbitrator invite a party to let off steam, to clear the air, or to discuss what is weighing heavily on their minds? Other than testimony that is directly related to general damages, pain and suffering, and emotional distress, when is a party asked how they felt about some past event, how they currently feel about things, and how it might make them feel in the future if they can reach a deal? The Anglo-Saxon system of justice may feature elements that are considered to be ‘genius’ but it generally does not invite, encourage, or allow the emotional narrative of a case to come out in the form of the parties’ own words.
Whether for reasons of efficiency or perceived lack of probative value, a party’s emotional state, except insofar as it relates to a specific general damages claim, is generally considered be legally irrelevant and inadmissible in civil trial. Civil litigators historically have advocated for their clients within the narrow confines of remedies for pain and suffering or emotional distress. Lawyers serving as mediators have to broaden their view of the role of emotions in the mediation process. Emotions often fuel negotiation tactics and objectives. Emotions may serve as barriers to communication and negotiation. Human nature is such that emotions play a central role, independent of who is involved in the dispute or the precise nature of the claims. Everyone is affected by emotions, including top elected officials and diplomatic operatives, high-ranking executives and managers, highly educated professionals of all kinds and everyday people. Understanding the role of emotions in conflict and mediation is key to managing the interaction between the parties in a productive way.
Mediators are trained to understand that emotions play a key role in conflict and negotiation. The importance of being able to ‘sit with conflict’, i.e. to allow the parties to express themselves emotionally without becoming overly agitated, is stressed in mediation training. The mediation process welcomes the expression of emotional issues and invites parties to talk about what is bothering them and how they feel. Several specific communication techniques are geared toward managing difficult conversations, including active listening, reflecting emotions, re-stating, role reversal, re-framing and acknowledgment. A mediator’s ability to calmly manage the parties’ expression of intense emotions enables the parties to understand the issues more clearly and to find their own path through conflict.
People do not mirror themselves in running water
Rather, they mirror themselves in still water,
Only that which is still,
Can still the stillness,
7. The rules are the rules
Lawyers work in a complex web of procedural and substantive rules. They rely upon statutes, regulations and other written rules. They research and cite case law interpreting the common law and written rules. The rules of professional responsibility dictate standards of conduct and practice. In short, lawyers are surrounded by rules and they apply rules on a daily basis in their professional practice. Rules of logic govern legal thinking. The Socratic method of using questions to elicit information is the norm in law schools. With everything that is implied, rules and rule-based behaviour circumscribe every aspect of the practice of law.
Rules may bring a degree of certainty but they also restrict possibilities. Rules may produce some defined standards but they also tend to result in generalised outcomes and remedies instead of individualised agreements. Rules, however arbitrary and ill-defined, may engender feelings of comfort, order and predictability. Working within the rules and also outside traditional boundaries of litigation, remedies and legalistic problem-solving may engender feelings of a loss of structure and loss of direction.
Mediation is structured but flexible. Mediation has well-established rules of facilitation but it is fluid in the manner in which they are applied. Mediation is a dynamic, interactive and multi-dimensional process, which requires constant adjustments and sound judgment by the mediator. For example, the stages of the mediation process provide a template for reference, but they may be varied according to the needs of the parties. In some cases, there will be pre-mediation communications between the parties and the mediator, while in other cases, the mediation may begin with a private caucus instead of a joint session. Mediators may choose to meet with some, but not all, of the parties in a sub-caucus where it may be productive. Likewise, there is flexibility in the way in which specialised communication techniques are used by a mediator. Mediators must continually use their discretion, skill and judgment during a mediation process that is unfolding, changing direction and raising unexpected twists and turns.
Mediators are asked to bring to the table their training in the mediation process as ‘process experts’. In addition, they bring to the table their communication and negotiation skills and abilities. They also bring to mediation their subject matter knowledge in particular fields and their general life experiences. Mediation asks that mediators refrain from limiting themselves to strictly traditional money agreements as settlements. They are challenged to be open-minded about the range of possible solutions that may exist for any given conflict. They are asked, in essence, to be flexible, to allow the parties to help determine the direction of the mediation process, and to allow litigants to find solutions that, while lawful, are unique to their particular circumstances and interests. As a practical matter, mediation takes place in the ‘shadow of the law’, which means that traditional rights, remedies and norms provide the initial framework for some mediations. However, this does not restrict the mediator from going outside those traditional boundaries if the parties express an interest in doing so.
8. The concept of judging
It has been said that judges are the hardest people to train as mediators, lawyers are the next hardest and the rest of the population is the easiest. The law encourages judges and lawyers to be judgmental about the facts, the law, and the credibility of witnesses and parties. Often, the act of analysing these factors moves into the realm of sitting in judgment of others as people. This type of focused analysis and global judgment is a difficult habit to break.
A lawyer-mediator faces the challenge of listening with an open mind to parties who have already submitted compelling mediation briefs. A lawyer-mediator has to resist the temptation to make early and unfounded judgments about the merits of a claim or defence. Harder still is the task of suspending judgment while the parties make persuasive arguments during mediation and the mediator observes characteristics in parties that would otherwise lead a person to develop personal feelings that favor or disfavor individual parties.
A mediator is asked to inquire about the factual background of a dispute and to entertain the parties’ positions on the issues and applicable law—without making public or private judgments. They are asked to treat the parties with equal respect, courtesy and consideration regardless of any personal feelings that may be generated. To the extent possible, mediators are asked to separate their personal feelings about parties from the facts, the law and other circumstances surrounding their claims.
Lawyer-mediators, by virtue of their training and experience, may tend to form early and rigid professional opinions about a dispute and the parties. In mediation, the challenge is to hold in reserve the process of judgment, while analysing the case and facilitating communication between the parties. Evaluation of the elements of a case does not necessarily include a global evaluation or rendering of a judgment. Moreover, the manner in which a professional evaluation is conveyed does not necessarily require that a lawyer-mediator come across as if they are rending a final judgment; instead, an evaluation can be described in terms of possible outcomes and can be the basis for a dialogue with the parties and their attorneys rather than a pronouncement. Mediation is, thus, a process of empowerment, even when the techniques a mediator uses may be invisible to the parties.
When the Master governs,
The people are hardly aware that he exists.
Next best thing is a leader who is loved.
Next, one who is feared.
The worst is the one who is despised.
If you don’t trust people,
you make them untrustworthy.
The Master doesn’t talk, he acts.
When his work is done,
The people say, “Amazing,
We did it, all by ourselves.”
Lawyers seeking training as mediators face distinct challenges due to their specialised legal training and experience. To make the transition from counsellor to conciliator, there must be an awareness of the fundamental differences between the mediation process and adjudicative processes, the roles of an advocate and a mediator and the specialised techniques that are used. The challenge for lawyers is to recognise the difference skill set of a mediator, while simultaneously applying their substantial base of knowledge and experience. Understanding the differences in procedural structure, formality and the rules of evidence can help lawyers to find a degree of comfort in the flexibility, creativity and freedoms of mediation. Accepting these differences and being prepared to let go of a lawyer’s traditional role can actually broaden a lawyer’s base of skills for resolving disputes in the role of a mediator or in their role as an advocate.
For trainers, it is vital to understand the lawyer’s perspective and to treat it as an educational starting point. Early in mediation training, there should be a focus on the distinctive nature and characteristics of the mediation process in comparison to adjudicative processes such as arbitration and trial. Problem-solving should be comparatively analysed with fact-finding and fault-finding. Additional focus should be placed on the distinctive role of a mediator compared to the role of an advocate or judge. The neutral/party relationship should be examined and contrasted with the attorney/client relationship, especially insofar as it may involve advice-giving. Critical thinking and analysis should be carefully distinguished from sitting in judgment or imposing decisions.
For training of lawyers as mediators to be effective, emphasis must be given to the fact that the transactional centre of the mediation process is the parties. It is the parties, who, with guidance and counsel from their advocates, have the responsibility and the freedom to control the outcome and to make decisions about favorable terms of agreement. It should be stressed that the mediation process, while structured, is flexible and dynamic. Mediators are expected to apply various specialized communication and negotiation techniques with discretion, good judgment, and responsiveness to the particular circumstances of each case. Role plays, exercises, interactive activities, and case studies should be developed to help lawyers broaden their perspective to include a mediative view of conflict resolution.
Lawyers bring an added dimension to the mediation of litigated cases, in terms of their experience with the trial process, their knowledge of the substantive law and their practice of working things out with opposing counsel and parties through negotiation. An enhanced understanding of the mediation process coupled with legal training and experience will enable a lawyer to become even more skilled in resolving disputes. Unburdened from the limitations flowing from custom, ceremony and the combative nature of the legal process, lawyers can achieve the transformation from gladiator to mediator.
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