Should A Mediator Also Be An Attorney?

Among the more hotly debated issues concerning appropriate
qualifications for mediators is the question as to whether it is preferable for mediators to also be lawyers.

In many states, a law degree is a prerequisite for
being listed as a court approved mediator. While most jurisdictions permit
disputants to choose any mediator, non-attorney mediators are not always
considered by court referred disputants. This is because, for most people,
it is just easier to pick a name from the court approved list than to do
their own research.

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. Because attorneys are the traditional gatekeepers of the
justice system, it is important to examine these assumptions closely.

In 1989, the Society of Professionals in Dispute Resolution’s (SPIDR)
Commission on Qualifications issued a report with the following
recommendation:
Knowledge acquired in obtaining various degrees can be useful in the
practice of dispute resolution. At this time and for the foreseeable
future, however, no such degree in itself ensures competence as a neutral.
Furthermore, requiring a degree would foreclose alternative avenues of
demonstrating dispute resolution competence. Consequently, no degree should
be considered a prerequisite for service as a neutral.

The SPIDR Commission strengthened this position in its second report in
1995. In order to determine the influence of attorneys on the mediation
process, two researchers compared divorce mediation in Georgia with that in
other parts of the U.S. In Georgia, divorce mediation enjoys nearly
universal acceptance by judges and lawyers. Mediation and settlement tends
to occur more frequently in Georgia because there is a greater emphasis on
outcome (agreement) than on process concerns, such as the depth to which
the dispute is resolved and disputant satisfaction. For example, when
presented with a hypothetical case involving a party with a “bad temper,”
very few Georgia mediators suspected a possible battering relationship.
While some mediators did help the parties define their own issues, it was
more common for the Georgia mediators to take the lead in defining the
relevant issues for the parties. Some mediation sessions were actually
structured more like litigation. The researchers attributed these
differences to the fact that the vast majority of divorce mediators in
Georgia are attorneys and a great many are simultaneously engaged in the
practice of law.₁

Because different disciplines have different understandings of conflict, so
mediation means different things to mediators with different professional
backgrounds. In one study, the heads of 17 family mediation services were
observed and interviewed about their theoretical perspectives and biases.
The researchers concluded that “prior professional experience [no matter
what the discipline] is just as likely to be an impediment as an asset to
learning mediation”.₂

Another study found that lawyer mediators tend to stress legal knowledge
and skills, such as drawing out the facts of the case, while social workers
tend to emphasize conflict resolution theory, interviewing, and
problem-solving even when both groups were exposed to both types of content
in their mediation training.₃ When attorney-mediators emphasize clarifying
the facts at the expense of the relationship and communication issues, they
may be inclined to see their subject- matter expertise as the key to
settlement. When this happens, creative, more complete resolutions are
frequently missed.

Attorneys still need extensive training in mediation after law school.
According to two attorney-mediator trainers:
Legal education fails to sensitize, and may even desensitize, lawyers to
the emotional dimensions and hidden agendas involved in clients’ seeking
adversarial solutions to their problems. The case method causes students to
look at legal problems abstractly, divorced from reality and human nature.
At the appellate level, human problems have been distilled into pure
questions of law and hypothetical fact. However, few clients’problems are
devoid of emotional content.₄

In other words, mediation is not a natural extension of the practice of
law, because mediation permits a broader definition of conflict as well as
a more complete approach to its resolution. Because attorneys are schooled
in, and acculturated to, the adversarial approach, it is very difficult
(but certainly not impossible) for them to be equally accomplished in a
more collaborative approach to settling disputes. There is no evidence to
suggest that simply because a conflict may involve issues of law, that
legal skills are more relevant to facilitating its resolution than human
relations and negotiation skills.

The second assumption used to justify requiring a law degree for mediators
is that attorney-mediators can assure justice because of their knowledge of
the legal system and the law. This assumption is faulty because it is
nearly impossible to render advice without favoring one party or the other.

Thus, it is unethical for mediators to give legal advice in mediation. If
parties need legal, or any other kind of advice, they are expected to
obtain it outside of mediation. However, having a legal background can be
advantageous in many mediation situations. The more familiar the mediator
is with the legal precedent and procedures specific to the case, the easier
it will be for the mediator to help troubleshoot proposed agreements and
help parties understand their legal options and responsibilities. Offering
disputants this kind of legal information can be quite helpful, but it
should also be remembered that it is not necessary to be an attorney to
provide legal information. One should also remember that being an
information provider is only a small part of what mediators do.

What is most important is that mediators, attorney or non-attorney, should
not attempt to mediate disputes involving legal issues without some
understanding of the legal context surrounding that dispute. How much
substantive knowledge a mediator needs is difficult to specify. Complete
ignorance of the legal context might cause disputants to unknowingly enter
into agreements which a court might consider inappropriate or illegal. At
the other extreme, too much substantive expertise can put the mediator’s
neutrality at risk by biasing them toward standard solutions and diverting
their attention from underlying interests and needs. However, if the
parties desire a case evaluation or a prediction as to how a court would
rule on a particular issue, then the neutral would need a high degree of
substantive knowledge and would probably need to be an attorney. Whether
mediation is the appropriate forum for such case evaluation and prediction
is also a hotly debated topic.

If courts are to maintain rosters of mediators and mandate mediation, then
they must insure that their mediators are qualified to mediate the referred
cases. Determining who is qualified, however, is not as easy as looking for
certain initials after the name. There is much more to conflict than law,
and there is much more to its complete resolution than legal remedies.

In mediation, parties have the opportunity to get beyond the confines of
law, but their ability to do so depends largely upon the mediator’s
understanding of and approach to conflict. While there may be certain
advantages to having a legal background, there may also be some
disadvantages which should be kept in mind when choosing a mediator for
your case.

Footnotes:


1. Bohmer, C., & Ray, M.L. (1993). Regression to the mean: What happens
when lawyers are divorce mediators. Mediation Quarterly, 11(2), 109-122.

2.
Neilson, L.C. (1994). Mediators’ and lawyers’ perception of education and
training in family mediation. Mediation Quarterly, 12 (2), 165-184.

3.
Albert, R. (1985). Mediator expectations and professional training:
Implications for teaching dispute resolution. Missouri Journal of Dispute
Resolution, 1985, 73- 87.

4. Marcel, K.W. & Wiseman, P. (1987). Why we teach law students to mediate.
Missouri Journal of Dispute Resolution, 1987, 77-87.

Discussion

                       

Cris Currie

Cris M. Currie has been a mediator and conflict management trainer since 1987.  He holds a Master of Arts degree in conflict resolution from Antioch University.  He co-designed the Certificate in Conflict Management program at Eastern Washington University and teaches courses in conflict resolution, negotiation, and mediation.  He is a… MORE >