Lawyers’ Increasing Sophistication 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 http://mediate.com/articles/young17.cfm (footnotes in original omitted in this posting).
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