Friday, June 14, 2013

Lawyers’ Increasing Sophistication in Mediation

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.  

A recently published book finally puts in one place much of the good advice on representing clients in the process.  See Harold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).  

Dwight Golann has also authored a new book called Resolving Disputes that he says reflects the perspective of lawyers representing clients in ADR processes.  Several law firm websites now have pages dedicated to preparing clients for mediation. 

Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques.  

At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” 

Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.”  Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement.  Based on the research, these scholars ask us to “bring in the lawyers” to mediation.

I agree, and discuss that topic in my next posting. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at (footnotes in original omitted in this posting).

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