Monday, January 4, 2010

Are Non-Lawyers the Best Mediators?

If judges are sometimes too judgmental, and if attorneys sometimes have trouble shedding their role as advocates, then the ideal mediator may be a non-lawyer. Non-lawyers bring to the table whatever training they may have as counselors, coaches, social workers, therapists, businesspeople, or teachers. Or they could be part of a growing cadre of people specifically trained in the arts of negotiation and peacemaking. They should be able to see beyond the narrow legal problems of the participants, and deal with their emotional, financial or other interests. Having grown up with a psychiatrist and a social worker for parents, and having observed some counselors at work, I have a lot of respect for people in the mental health field. They have developed or have received extensive training in many of the techniques that mediators of legal disputes attempt to put to use. In some ways, a licensed psychologist or social worker might be considered a true expert, while an attorney or judge acting as a mediator could be viewed as an amateur in using the techniques that may lead to a successful resolution of a dispute.

Non-lawyer mediators may not be in as good a position to provide evaluations of the potential value of a lawsuit in court, or of the costs and other pitfalls of litigation. They may not even fully understand the issues that would be decisive in resolving a legal dispute in court. But in many cases, parties do not expect to get an opinion on those issues at the mediation. They should be able to rely on their own attorney for that. (See this post from the always-reliable Victoria Pynchon explaining that it's primarily the parties' attorneys' job to provide an assessment of their chances at trial.) Often the mediator's job is to support and get the parties to understand their own attorneys' views of the costs and benefits of continued litigation, and perhaps also to listen to the opposing party's attorney's evaluation. Offering a third opinion of the value of the case may be confusing and can even be counter-productive. So if the parties go to mediation without needing or expecting an expert evaluation of the case, they should not be disappointed if the mediator does not provide one.

The problem for non-lawyer mediators is that parties who have been referred to mediation for the purpose of settling a lawsuit, are often still expecting a quasi-judicial resolution. Often they are not ready for something that sounds too much like touchy-feely therapy. Divorcing couples might have some experience with couples counseling, and may be more likely to appreciate a more therapeutic approach to mediating the issues in a divorce, but even they may prefer a more hard-headed, business-like consideration of the costs and risks of trial vs. settlement, when it comes to the task of making a business-like decision about settling their legal claims against each other. Business people and insurance companies are likely to have even more hesitation about submitting to a process that delves into any issues beyond the straightforward assessment of the value of a lawsuit. As a practical matter, non-lawyers also seem to have more trouble getting accepted for some court-annexed mediation programs, and getting lawyers to refer cases to them. (Here's a poignant complaint from mediator Barry Simon about the difficulty of building a mediation career as a non-lawyer. It's not so easy for lawyers or retired judges either!) As the process of mediation becomes better understood, however, one would expect that parties seeking mediation would be less concerned about whether the mediator studied contracts or knows how to try a case, and more concerned about their effectiveness in resolving disputes.

(James Gandolfini and Lorraine Bracco in The Sopranos)

6 comments:

Joseph F. Dillon said...

Like the old saying goes "when the only tool you have is a hammer, the whole world looks like a nail" the same I find holds true for most judge or attorney mediators. I appreciate what you said about allowing clients to select the approach and the mediator that works for them as a mediator with an MBA I tend to get high net worth couples rather than those seeking a more as you put it touchy feely approach.

Nice article.

Joe Markowitz said...

I think for most people the world looks like a place to use whatever methodology you have learned, whether that is law or economics or psychology or whatever. Ideally, wouldn't a mediator want to use a multi-disciplinary approach? Which is another way of saying that it is probably a good idea to have as many tools in your toolbox as you can. Thanks for your comment, Joe.

Bob Ballou said...

Joe,

Your observations on mediation and the need for preparation are relevant and interesting in today's legal environment. It is certainly true that by avoiding a trial, parties can avoid enormous costs that present themselves in terms of time and money. In your article you detail how mediation is becoming a substitute for a trial, and how in your experiences as a trial lawyer most of your cases ended in negotiation settlement. In regards to legal trends, I am curious as to your stance on online dispute resolution.

ODR has the same advantages of mediation in the respect that it helps avoid the enormous costs that are associated with the trial process. However, online dispute resolution also possesses other advantages such as removing the emotion and posturing present in mediation that can obstruct constructive efforts and lead parties astray from objectively recognizing the facts and information present.

My firm, Cybersettle, is a leader in this arena and specializes in using technology to accelerate the final phase of resolution – negotiating the financial settlement. Our web-based settlement process has already settled more than 200,000 cases. In one instance, our solution saved the Office of the Comptroller of New York City $11.6 million, while dramatically reducing the city's claims back-log by thousands.

I am very interested to hear your commentary and insight on ODR and its implications for the modern legal process.

-Bob

Robert C. Ballou, CEO
Cybersettle, Inc.
bballou@cybersettle.com

CharlieO said...

Attorneys are bound by ethics and according to cannon five, they can only represent one client...an ethical conundrum?

Anonymous said...

Whether a nonlawyer will be effective as a mediator in a particular matter depends on the purpose of the mediation, the nature of the dispute and the relative sophistication of the parties (and I suppose it also can be said those factors are determinative of whether a lawyer will be effective as a mediator). Most of the mediations my clients agree to occur in the context of complex cases after substantial discovery takes places and involve briefing and presentations to mediators who are coveted for their intelligence, problem solving skills, and reputation as former attorneys and/or judges, and many of the mediations involve multiple sessions. Plainly, in these circumstances, the issues are contested, often very close, and an adverse outcome at trial would have substantial adverse consequences for the losing party. The parties DO WANT the mediator to give THEIR ADVERSARY a candid assessment of the legal merits of their case, and usually get one of their own in the process. The one experience I had with a nonlawyer mediator in this circumstance was not helpful, and did more harm than good. The parties were set back, but eventually mediated again with a different mediator and settled.

However, being the product of a 1970's divorce that ripped my family to pieces, I will say that where the parties will have ongoing future familial or personal relationships, nonlawyer mediators should be considered because they are less likely to get lost in the moment of the deal and forget what lies ahead.

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