Wednesday, June 12, 2013

The Who of Mediation: Lawyers in the Mix

In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel.  The presence of lawyers at the mediation was itself unusual according to some limited empirical research.  Two studies in Arizona, two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party.  Thirty-five to fifty-six percent of the mediations involved two pro se parties.  

Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied.  Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party.  

Moreover, sixty-nine to seventy-two percent of cases filed in a Wisconsin urban area court involved at least one pro se party.  If a court referred these parties to mediation, they likely did not retain counsel to represent them in the process.

Lawyers as Spoilers?

Some mediators prefer that lawyers do not participate in mediation.  They consider lawyers potential “spoilers” because the traditional adversarial role they play. Perhaps their mindset, may keep them from exploring creative solutions to the dispute.   Some mediators also believe lawyers take an adversarial point of view to information gathering and exchange.  Accordingly, lawyers may view information as simply enhancing a client’s legal case and should, therefore, be used for winning.  It should not be shared except at trial and certainly should not be shared to explore value creating trades or other settlement options at mediation.  

Other commentators contend that lawyers compromise the mediation process by jealously viewing it as an intrusion into their domain of competence.  They also argue that lawyers cannot adapt “professionally to a situation of controlled and defused, rather than polarized and contentious, conflict.”

 Lawyers’ Views of Mediation

These lawyer attitudes found expression in some recent research.  Beginning in 2000, Julie Macfarlane, a Canadian law professor, analyzed forty lawyers working in Toronto and Ottawa on their attitudes about a new rule requiring mandatory mediation of commercial cases.  She developed five “ideal types” to characterize the comments of the lawyers.  

The “pragmatist” viewed mediation as an extension of the adaptive settlement role these trial lawyers played before courts required mediation.  Mediation, they believed, offered an early opportunity to assess and prepare a case, to limit the rising costs of litigation, and to provide to business clients the rapid resolutions of disputes they sought.   Yet, these lawyers still saw themselves as taking the lead in the mediation process.

“True believers,” another group indicating positive attitudes towards mediation, used quasi-religious metaphors to talk about how mediation had affected their orientation to practice strategies and conflict resolution.  They felt “converted” or “transformed” in the ways they sought to meet clients needs and expectations and in identifying the changes they had experienced personally and professionally.  They viewed mediation as a new form of adversarial process and recognized the distinct skill set it required.  

A true believer often ensured that his or her client played an important role in the mediation process.  They were more likely to use non-lawyer mediators who could handle and appreciate the heightened emotions of the parties to the disputes.

The “instrumentalist” used mediation simply to advance the client’s unchanged adversarial goals.  The instrumentalist either used the tool strategically to fish for information or to reduce the expectations of the opposing party.  The lawyer played the dominant role in the process.  He was more likely to use an evaluative mediator and was surprised if the process resulted in non-monetary or integrative, rather than distributive, solutions. 

The “dismisser” regarded mediation as the latest fad, offering little over traditional unassisted lawyer-sponsored negotiation.  He acknowledged that mandatory mediation required earlier preparation of the file, but viewed this development as an intrusion on his or her autonomy and control.  The dismisser often viewed the utility of the mediation process as providing a “reality-check” for his unruly client or for opposing parties who, at least from his viewpoint, were poorly represented.  The dismisser sought evaluative mediators with judge-like authority. 

Finally, the “oppositionist” viewed mediation as a danger to the legal system, to the role of adversarial dispute resolution, and to his or her role as a winner-takes-all advocate.  He or she viewed mediation as a response to government inefficiencies and court back-logs.  He or she viewed mediators as unskilled and manipulative.  Accordingly, mediation felt risky for him or her because of the perceived loss of control. 

 Several factors seemed to affect these attitudes.  Lawyers who had had more experience in mediation tended to view it more favorably.  Also, when the leadership in the local legal community strongly supported mediation, lawyers in that community also tended to show more support for the process. 

In addition, attitudes of lawyers reflected the attitudes of the businesses or industries from which they drew their clients.  Some of those clients were more litigious and some more settlement-oriented.

Macfarland asked whether we could expect to see, over time, more convergence in the attitudes of lawyers.  With time, they would participate in more mediations and become more aware of the different skill set mediation requires that is distinct from the traditional positional bargaining skills they already have.  At the time of the research, one lawyer explained: “I’m still at a loss as to what role I really play.”

A recent study by the ABA Committee on Dispute Resolution examined what factors affect an attorney’s advice to clients to try ADR.  At least sixty percent of the 2,330 attorneys surveyed had served as an advocate on behalf of a client in a case using ADR or they had served as a third-party neutral. 

The survey concluded that if an attorney had any experience with ADR, he or she was much more likely to recommend ADR to a client.  The article concluded by recommending that more attorneys be encouraged to participate in ADR, with the message of the study seeming to be “try it, you’ll like it.” 

A study conducted in 2001 of Arizona lawyers, most of whom had tort or personal injury practices, showed that lawyers were less likely to discuss ADR options with their clients or opposing counsel if they were less familiar with the processes.  Attorneys who expected mediation to produce earlier and satisfactory settlements also thought the benefits of ADR outweighed any costs associated with the processes.  Less knowledgeable attorneys were less likely to believe that ADR would produce benefits for their clients. 

Taken together, the studies suggest that mediation conducted by skillful mediators sells itself.  Over time, lawyers who have good experiences in mediation and feel competent in the new process will recommend its use to clients.  The research may also suggest that as lawyers become more skillful in the process they may be less reliant on mediators offering evaluative or judge-like styles.

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 are omitted in this blog posting). 

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