There is a growing concern in the legal profession that resorting to litigation to resolve a dispute is a ‘cure worse than the illness’. Like it or not, litigation is not about to disappear any time soon from the horizon and in some instances, litigation may be the only way to bring closure to the conflict. The enlightened practitioner should therefore consider whether or not litigation is necessarily the only ‘appropriate’ method of resolving the conflict. We would do our clients and ourselves a great service by considering other ways to help them resolve their legal issues. Mediation is one of those ways. Because it is still somewhat in the shadows, mediation is shrouded by some fairly persistent myths. Let us take a look at some of the more familiar ones.
Myth # 1: Mediation is Binding
The fact is, there is a great deal of confusion about whether mediation is “binding” and, at least in this regard, is often confused with arbitration. (The Mediator is a neutral party and, unlike an Arbitrator, does not adjudicate the matter.) In a recent discussion of the subject, an attorney I know said “I think mediation is a good idea, especially since it is binding anyway.” This is simply not the case. A distinction must be drawn between the (a) the mediation process itself and (b) an agreement that is made as a result. The process of mediation is, by definition, entirely voluntary and non binding. It is wholly dependent upon the parties´ relative willingness to participate or to negotiate in good faith. The voluntary nature of mediation holds true even when a case is referred to mediation by the courts. Admittedly, the parties are expected to comply with the referral order and to attend an initial session. The extent of their efforts in the ensuing negotiations, however, is entirely at will. As a member of the Federal Court Panel, I have mediated many cases referred by the U.S. District Court for the Eastern District. While most of these cases result in settlement agreements, some participants are visibly resistant to the process. After participating in initial sessions, many of them are ‘won over’ and their continued participation then becomes truly voluntary. On the other hand, some decide, for any number of reasons, that an adjudication of their case is preferrable and opt out of the mediation process, as is their perogative.
Myth # 2: Agreements generated by Mediation are non binding
While the process is voluntary and non-binding, agreements resulting from mediation are legally binding and have the force of law. Yet there are some that believe that a ‘mediated agreement’ is somehow distinct from or less than a contract drawn up by more traditional means. This is a myth with international reach. I have heard this misunderstanding both here and abroad. In a project sponsored by USAID, I had the opportunity to work with lawyers in several Latin American nations. We collaborated on a program which incorporated the use of mediation in criminal proceedings. Many of my colleagues expressed a belief that a mediated agreement does not rise to the stature of an enforceable contract and that, either signatory should, if they so desire, have the right to return to court for a de novo adjudication of the matter. This view is completely contrary to basic principles of contract law. Barring the usual obstacles to enforcing contracts (fraud, overreaching, lack of capacity) an agreement struck as a result of the mediation process is a contract like any other and has and should have the credibility and the force of law.
Myth #3 Mediation is for Sissies
We often devalue the role of Mediator as some benign presence without the forceful nature of what we truly need: a Gladiator (translate: litigator) who will slay the dragons on the other side. We wonder how a mediator can possibly bring to bear the power and might necessary to resolve anything other than a simple family squabble or a neighbor to neighbor disupte. In his excellent discussion of the subject, author Benjamin Sells, in The Soul of the Law, Understanding Lawyers and the Law, Element Books, Inc., 1994, asks the question: Are we afraid to Mediate? Do we really believe that Mediators are weak and that compromise is only for the B Team? Early on, a good mediator learns that mediation is surely not for sissies! It takes finely tuned communication, negotiation and analytical skills to do the process justice. Mediation is no less challenging than litigation but it is a non adversarial approach to conflict resolution and therein lies the rub. Do we believe that a non adversarial approach which results in two sides coming to terms and putting an end to their conflict deserves less respect and credibility than one which requires competitive side taking? Of course, a bad mediator is just as bad as a bad litigator and we have seen the results of both. What we know now is that a mediator— to be effective—must listen attentively, probe for common ground, paraphrase in order to clarify, ask astute and well timed questions, manage the different stages of the process and simultaneously organize zig zagging issues into a cohesive discussion. In other words, a skilled mediator must be able to create an environment and facilitate a communication flow between the parties that will ultimately prompt them to resolve their own conflicts. Have no doubt: this role is not meant for the weak of heart or mind.
Myth # 4: Lawyers are natural Mediators and do not need Mediation Training
I have asked this “True or False” question many times in training programs I conduct. The response is generally the same. Fifty percent wholeheartedly agree and fifty percent adamantly disagree. It is at least a question that must be asked since mediation, as it continues to gain favor, will attract more attorneys who will either want to mediate cases themselves or will find themselves representing their clients in mediation. Legal education emphasizes the processes of (a) fact finding and (b) legal issue spotting. In the adjudication process, these skills are obviously indispensable. In mediation, however, the “who”, “what”, “when”, “where” and “why” are not the only determinants of resolving the case. While many lawyers will find their analytical skills helpful in mediation, the risk is that, unless they are willing to embrace a different ‘model’ and skill set, they will see the conflict through a narrow lens and miss the hidden agendas and communication issues that make the mediation process so unique. The adversarial paradigm places the lawyers at the head of the table. This is the model which demonstrates our legal training and expertise. The mediation paradigm, on the other hand, places the parties at the head of the table. They have the floor, so to speak. Of course, the Mediator must be in control of the process, like the conductor in front of the orchestra. The parties themselves, however, are encouraged to control the outcome. Mediation provides a venue for the parties to view their conflict in broader terms and craft solutions that resonate with their own particular needs and interests. Mediation is not necessarily a natural extension of the practice of law, but an adjunct, a supplement, another “trick in the bag”, but – make no mistake— a Mediator should have extensive training and practice. The federal district court panel, by way of example, requires a minimum of 40 hours of training in an approved program only and attendance in advanced training programs conducted each year.
Myth # 5 Mediation is not economically viable as a professional practice
Of all the myths about mediation, this one is truly ironic because it is in the nature of a self fulfilling prophecy. The legal profession is often resistant to change. The lawyer culture is one of tradition, custom and formality. This may (or may not) explain why the study and practice of mediation has often been marginalized by the legal community. Baba Dioum, the well known conservationist, reminds us that we can only embrace what we understand and we can only understand what we are taught. The more we, as legal professionals, are willing to learn about so called ‘alternative’ dispute resolution methods, the more we will understand them. Once we understand them, we will no longer marginalize them. Once we treat mediation as a viable, mainstream dispute resolution methodology, we will create the very economic benefits (increased client demand, appropriate fee structures, greater case management) that we fear are non existent. Our profession is strategically situated to take the mystique out of the “M” word, take Mediation out of the closet, examine it, understand it, master it and, yes, be compensated properly for it. We are seeing a growing number of clients requesting mediation services and that trend is sure to continue. A survey of European corporate personnel conducted by PricewaterhouseCoopers in Germany* found that, while lawyers said they were less likely to choose mediation, the overwhelming majority of the executives interviewed directly said that they favored mediation and other ‘out of court’ dispute resolution procedures, because litigation often meant great expenditures of time and money and, equally important, potential damage to on going business relationships. (*See: www.pwc.com/Extweb/pwcpublications.)
We can promote mediation or we can ignore it at our peril. In promoting mediation, we can and should create minimum training requirements, credentials, continuing education and licensing. In other words, we can and will attract potential clients when we can assure them (and ourselves) that mediation is a credible, professional and appropriate method of resolving legal disputes. Myth and mystique aside, mediation deserves our attention.