Should A Mediator Also Be An Attorney?
by Cris Currie Supporting Effective Agreement
Among the more hotly debated issues concerning appropriate qualifications for mediators is the question as to whether it is preferable for mediators to also be lawyers. In many states, a law degree is a prerequisite for being listed as a court approved mediator. While
most jurisdictions permit disputants to choose any mediator, non-attorney mediators are not always considered by court referred disputants. This is because, for most people, it is just easier to pick a name from the court approved list than to do their own research.
The rationale for requiring a law degree and legal experience rests on two assumptions. First it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented. Because attorneys are the traditional gatekeepers of the justice system, it is important to examine these assumptions closely.
In 1989, the Society of Professionals in Dispute Resolution’s (SPIDR) Commission on Qualifications issued a report with the following recommendation: Knowledge acquired in obtaining various degrees can be useful in the practice of dispute resolution. At this time and for the foreseeable future, however, no such degree in itself ensures competence as a neutral. Furthermore, requiring a degree would foreclose alternative avenues of demonstrating dispute resolution competence. Consequently, no degree should be considered a prerequisite for service as a neutral.
The SPIDR Commission strengthened this position in its second report in 1995. In order to determine the influence of attorneys on the mediation process, two researchers compared divorce mediation in Georgia with that in other parts of the U.S. In Georgia, divorce mediation enjoys nearly universal acceptance by judges and lawyers. Mediation and settlement tends to occur more frequently in Georgia because there is a greater emphasis on outcome (agreement) than on process concerns, such as the depth to which the dispute is resolved and disputant satisfaction.
For example, when presented with a hypothetical case involving a party with a “bad temper,” very few Georgia mediators suspected a possible battering relationship. While some mediators did help the parties define their own issues, it was more common for the Georgia mediators to take the lead in defining the relevant issues for the parties. Some mediation sessions were actually structured more like litigation. The researchers attributed these differences to the fact that the vast majority of divorce mediators in Georgia are attorneys and a great many are simultaneously engaged in the practice of law.
Because different disciplines have different understandings of conflict, so mediation means different things to mediators with different professional backgrounds. In one study, the heads of 17 family mediation services were observed and interviewed about their theoretical perspectives and biases. The researchers concluded that “prior professional experience [no matter what the
discipline] is just as likely to be an impediment as an asset to learning mediation”. Another study found that lawyer mediators tend to stress legal knowledge and skills, such as drawing out the facts of the case, while social workers tend to emphasize conflict resolution theory, interviewing, and problem-solving even when both groups were exposed to both types of content in their mediation training.3 When attorney-mediators emphasize clarifying the facts at the expense of the relationship and communication issues, they may be inclined to see their subject- matter expertise as the key to settlement. When this happens, creative, more complete resolutions are frequently missed.
Attorneys still need extensive training in mediation after law school. According to two attorney-mediator trainers: Legal education fails to sensitize, and may even desensitize, lawyers to the emotional dimensions and hidden agendas involved in clients’ seeking adversarial solutions to their problems. The case method causes students to look at legal problems abstractly, divorced from reality and human nature. At the appellate level, human problems have been distilled into pure questions of law and hypothetical fact. However, few clients’problems are devoid of emotional content.4
In other words, mediation is not a natural extension of the practice of law, because mediation permits a broader definition of conflict as well as a more complete approach to its resolution. Because attorneys are schooled in, and acculturated to, the adversarial approach, it is very difficult (but certainly not impossible) for them to be equally accomplished in a more collaborative approach to settling disputes. There is no evidence to suggest that simply because a conflict may involve issues of law, that legal skills are more relevant to facilitating its resolution than human relations and negotiation skills.
The second assumption used to justify requiring a law degree for mediators is that attorney-mediators can assure justice because of their knowledge of the legal system and the law. This assumption is faulty because it is nearly impossible to render advice without favoring one party or the other.
Thus, it is unethical for mediators to give legal advice in mediation. If parties need legal, or any other kind of advice, they are expected to obtain it outside of mediation. However, having a legal background can be advantageous in many mediation situations. The more familiar the mediator is with the legal precedent and procedures specific to the case, the easier it will be for the mediator to help troubleshoot proposed agreements and help parties understand their legal options and responsibilities. Offering disputants this kind of legal information can be quite helpful, but it should also be remembered that it is not necessary to be an attorney to provide legal information.
One should also remember that being an information provider is only a small part of what mediators do. What is most important is that mediators, attorney or non-attorney, should not attempt to mediate disputes involving legal issues without some understanding of the legal context surrounding that dispute. How much substantive knowledge a mediator needs is difficult to specify. Complete ignorance of the legal context might cause disputants to unknowingly enter into agreements which a court might consider inappropriate or illegal. At the other extreme, too much substantive expertise can put the mediator’s neutrality at risk by biasing them toward standard solutions and diverting their attention from underlying interests and needs. However, if the parties desire a case evaluation or a prediction as to how a court would rule on a particular issue, then the neutral would need a high degree of substantive knowledge and would probably need to be an attorney.
Whether mediation is the appropriate forum for such case evaluation and prediction is also a hotly debated topic. If courts are to maintain rosters of mediators and mandate mediation, then they must insure that their mediators are qualified to mediate the referred cases. Determining who is qualified, however, is not as easy as looking for certain initials after the name. There is much more to conflict than law, and there is much more to its complete resolution than legal remedies.
In mediation, parties have the opportunity to get beyond the confines of law, but their ability to do so depends largely upon the mediator’s understanding of and approach to conflict. While there may be certain advantages to having a legal background, there may also be some disadvantages which should be kept in mind when choosing a mediator for your case.
1. Bohmer, C., & Ray, M.L. (1993). Regression to the mean: What happens when lawyers are divorce mediators. Mediation Quarterly, 11(2), 109-122.
2. Neilson, L.C. (1994). Mediators’ and lawyers’ perception of education and training in family mediation. Mediation Quarterly, 12 (2), 165-184.
3. Albert, R. (1985). Mediator expectations and professional training: Implications for teaching dispute resolution. Missouri Journal of Dispute Resolution, 1985, 73- 87.
4. Marcel, K.W. & Wiseman, P. (1987). Why we teach law students to mediate. Missouri Journal of Dispute Resolution, 1987, 77-87.
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