The Red Velvet Lawyer

My last several posts have discussed factors a lawyer or party should consider in selecting a great mediator. Today, I'd like to talk about mediator impartiality. I have discussed this topic, one of the core values of mediation, in a much lengthier law review article:  Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011).  You should be able to download it  here .  Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution.  He suggests you think about these issues along two dimensions that create four quadrants on a grid.  One side of the grid are the terms “parties” and “outcome.”  On the other side of the grid are the terms “relationship” and “c...

I want to continue my discussion of how best to choose a mediator.  I started the discussion here .  This posting will focus on a few more factors to consider.   Mediator's Process Skills and Expertise  Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bono work to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstate...

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators. A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri , a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training require...

Several years ago, the University of Missouri-Colum bia School of Law held its annual training for new mediators.   I served as a role-play coach and evaluator.  Those of us who have been through that training call it the “baby” mediation training.  Its principle purpose, in my mind, is to show the participants how little they know, even after they complete the training, and the significant challenges a mediator faces.  Mediation is not for sissies. After three days of training, many of this year’s participants began to realize that mediation is hard work.   Several trainees realized that good mediation requires rough and tough litigators to move out of their comfort zones.   Good mediation requires a different set of skills from those used regularly by trial lawyers. Missouri Supreme Court Rule 17 requires new mediators to have at least sixteen hours of “appropriate” training.   These requirements are quite modest.   Virgin...

A decade after his first “grid” article, described in my last posting  here , Professor Len Riskin looked again at the question of mediator style, orientation, or strategies.  Perhaps influenced by his 20-year experience in mediation, or by his understanding of “living in the moment” derived from his mindfulness meditation practice, or perhaps because of the increasingly shriller debate about which style was “best,”   he took a more nuanced and fresh look at the original grid.   See  Leonard Riskin,  Who Decides What? Rethinking the Grid of Mediator Orientations , 9 No.2 Disp. Resol. J. 22 (2003).     He now suggests, I think, that we mediators should be gentler with each other.  Instead of labeling ourselves and each other (bad, bad evaluator or flakey, inefficient facilitator, or weird transformative mediator), mediators can ask instead what the parties need in the moment.  Mediators can also listen better when the p...

In 1994, Len Riskin, then the C.A. Leedy Professor of Law at the University of Missouri-Columbia and Director of its Center for the Study of Dispute Resolution, inadvertently started a great debate about what “style” of mediation was “best.”   When he published the article entitled, Mediator Orientations, Strategies and Techniques , 12 Alternatives to the High Cost of Litigation 111 (1994), he described four styles of mediation based on how broadly the mediator defined the problem presented by the parties (and thus the depth of intervention the mediator was likely to take) and the role of the mediator -- either facilitative or evaluative.   According to this analytical scheme, a mediator could be: narrow/facilitative, narrow/evaluative, broad/facilitative or broad/evaluative.   The two-dimensional grid based on this analysis supposedly predicts the strategies each type of mediator is likely to use, and, Riskin thought at the time, the amount of self-determination the...

Solo practice, a no doubt terrifying option for most new graduates, still remains an option for lawyers.   Many resources exists to help new solos.  An article published recently, lists a few of them  here . I am also following several blogs focused on solo practice that you can easily access through this blog site.  A much longer list of relevant blogs appears here .  Recently, we offered students a one day workshop on going solo.  It covered: Assessing the Risks and Rewards of Being a Lawyerpreneur  Financing a Solo Practice  Trust Accounts  Income Tax Implications of Solo Practice  Legal Research Resources  Law Office Technology  Ethics  Marketing a Solo Practice, and  Tips from an Alumna For a free scanned copy of these materials, send me an email at pyoung@asl.edu.   Interestingly, the alumna who offered advice to students told me she had turned down a job in the local Commonwealth A...