To think about the future of mediation brings so many thoughts to mind as the field continues to grow and evolve. The war stories from mediation practitioners who have been in the field for so many years makes you realize how much mediation has advanced in their hands, and due to their hard work. This can only mean we will leave the future of mediation in the hands of those we educate and train, and we should make sure all participants of mediation are on the same page going forward.
I agree with many other colleagues that going forward there should be a focus on public awareness, the training and licensing of mediators, but also, and maybe most importantly, the training of attorneys who will be using mediation. I say this because mediation is used when there is a dispute, so we know that litigation and mediation will almost always go hand in hand, and will therefore, almost always involve attorneys.
I was not formally trained in negotiation and mediation until deciding to transition my practice from one of litigator to mediator. It was in these mediation trainings that I realized how valuable this information and background could also be to attorneys so all players are on the same page as we sit in mediation. I want to expand upon two separate events that have led me to the conclusion that as attorneys we must understand mediation and work to train future attorneys in the concepts and use of dispute resolution.
First, I want to expound upon a CLE I organized and attended regarding attorney preferences at mediation, and second a trip with law students to the ABA Representation in Mediation Competition.
After working as a mediator I began to notice the disparity in the way attorneys and mediators approach and think about mediation. I recently asked a colleague to speak at a CLE where both mediators and attorneys would be present, regarding the preferences of attorneys when it comes to mediation. I told him there may be controversial topics that arise and he was graciously okay walking that fine line. As he presented the preferences of attorneys to the group – that mediators should know the facts of the case, should help evaluate the case, should provide options and insight into the strengths and weaknesses of the case, etc. – the mediators began to ruffle their feathers thinking this attorney obviously did not understand the purpose of mediation. One attendee, who provides mediation training to new mediators, spoke up about the ethical rules and responsibilities of mediator when it comes to providing advice or evaluating a case at mediation. This sparked a lively and heated debate for the rest of the hour regarding attorney and mediator perspectives walking in to mediation. I think everyone realized this was a conversation we needed to continue in the future.
What was the key take away from this debate…
Mediators are trained in the concepts of dispute resolution and mediation.
Many attorneys attend mediation in almost every case, but are often never trained in the concepts of mediation.
Attorneys are trained to be adversarial. Are trained to advocate for their client. Are trained to go to trial. But in reality far more of their cases will actually be settled at mediation. There was few, if not only one, class regarding negotiation when I went to law school and it was not a required course. And still currently, few classes on negotiation and mediation are offered, and few, if not zero, of those classes are required for graduation. [I admittedly have not checked the requirements at various law schools, but may endeavor to do so based upon these observations].
With these thoughts in mind, let me also reflect upon a recent trip with a group of four law students to a regional ABA Representation in Mediation Competition. The students participated in a mock mediation in teams of two students (one client and one attorney). The students were to negotiate a dispute with a mediator for 75 minutes in front of three judges, and then evaluate their own performances. The mediators and judges were local practitioners and provided the students with invaluable advice.
The experience of a mock mediation provided the students with an opportunity to prepare for mediation, to develop the interests of their client, to practice negotiating in the same room during mediation, to practice using a caucus, and to practice using the assistance of a mediator. I believe that after taking a course in negotiation and mediation, and participating in this mock mediation that the students had learned more about their role as an advocate and the role of the mediator.
Simply observing the mediations gave me an opportunity to see how valuable an education in the use of mediation can be for an attorney in their representation of a client.
As a mediator, I see attorneys representing their clients in mediation on a regular basis and each seems to have a different approach. While some of these approaches are advantageous, others can be downright destructive at times. I am noticing, however, that it is less the specific approach, and more the knowledge, awareness, and flexibility that helps attorneys navigate the negotiation and mediation process with their clients. I believe it is with an understanding of the basic concepts surrounding negotiation and mediation that attorneys will be best prepared to help carry mediation into the future.
Therefore, as mediators often rant about how attorneys fail to use mediation effectively when they do not understand the different styles or techniques a mediator may use to help at mediation, we should then find a better way to educate the next generation of attorneys who will undoubtedly be using the mediation process in the future.
Specifically, to get on the same page going forward we should:
It is my belief that the skills used by mediators and negotiators will be an invaluable tool to future attorneys, and expanding these skills will promote not only the use of mediation, but the most effective use of mediation by attorneys and mediators. It will only serve as a disadvantage to the clients at mediation if attorneys and mediators are not on the same page regarding the expectations of the mediator’s role and mediation.
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