Lawyers & Mediators: Mediation Isn’t Mediation

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by Jeff Bean September 2009

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When lawyers and mediators say mediation we often use it to mean very different things. And we often don’t understand that we mean very different things.

To be clear, there’s mediation and then there’s mediation. They are as different as night and day. I wish we used different words for them, but we don’t.

There is a clear distinction. Here it is:

One is an alternative to litigation. The other is an alternative to trial.

The legal community has done an amazing job creating a hybrid process that uses mediation as an alternative to trial. What the legal community has not done on a broad scale is to adopt mediation as a comprehensive dispute resolution process as an alternative to litigation.

I don’t find it helpful describe either as “real” or “true.” They are just different. But if we want to serve a new kind of client, we need to be crystal clear that there is a difference.

Mediation as an Alternative to Trial

Litigation is a dispute resolution process designed to get to a trial. It’s oriented toward a particular outcome: a decision made by a judge that will be imposed on the parties. It will be the resolution of their dispute, whether they like it or not.

Because the outcome of litigation is imposed, the process itself can also be imposed. Litigation is based on the coercive power of the state, exercised by lawyers as officers of the court. Using the power of the summons, subpoena and writ, we lawyers can haul you and your assets into court. There the rules of civil procedure will dictate what will happen to you. The truth-finding mechanism of trial will pit you against the other. In both process and outcome, litigation is based on coercion, and so it is naturally adversarial.

Beginning 30 years ago some lawyers saw in mediation a way to avoid trials. It has since become a very common and accepted way of ending lawsuits. Many cases are mediated now, usually after most of the lawyering is done. Trials rarely happen anymore. This form of mediation is the endgame in litigation. It is an integral part of it. Because litigation is coercive and adversarial, so the mediation that ends it is also by its nature coercive and adversarial.

This is the form of mediation most lawyers know and find familiar.

Mediation as an Alternative to Litigation

The other form of mediation is an alternative to litigation. It is a comprehensive dispute resolution process. For the matters in which it is used, it is a complete replacement for litigation.

This form of mediation is designed from the start to reach an agreed resolution – one to which the parties all agree. Because the agreement that results is based on consensus, participation is voluntarily. So, too, the way they get there is also something to which they must all agree.

In both process and outcome, this mediation is based on voluntary participation and consensus, and so it is naturally collaborative.

This form of mediation is not well-known among lawyers.

Why Lawyers Should Care

Here’s why we should be clear about the difference. It’s because we lawyers are the last to understand that there is a difference.

Clients understand the difference. When 60% or more of divorcing couples file pro se, we lawyers delude ourselves by thinking it’s because they can’t afford our services. They can afford us, sure – they just don’t want us. Lawyers mean lawsuits, and that’s what they do not want. So they don’t come to us.

These new clients want a different way of resolving their disagreements. They are learning they have options besides fighting each other with lawsuits or walking away. For them fight or flight isn’t enough – they know that just because they disagree doesn’t mean they can’t still work together to build their resolution.

Our competition understands the difference. These clients are finding professionals to help them: conflict coaches, consultants, dispute resolution professionals, ombuds, review boards, facilitators. These are the people providing the services and collecting the fees. They are not always lawyers. If they are, they are rarely providing legal services. They are establishing footholds in workplace, construction, vendor contracts, merchant/consumer, land use, B2B, environmental, divorce, public policy, negotiated rulemaking, online disputes, high-tech.

Our clients are demanding that the dispute resolution field expand beyond adversarial litigation. But lawyers have ceded to others the landscape for alternatives to litigation. So let me be clear: lawyers risk losing their traditional position as the preeminent dispute resolution profession. Go back and read that again.

It doesn’t have to be this way.

A New Tool for the Lawyer’s Toolbelt

It’s not that these new clients don’t want lawyers – they just don’t want lawsuits. We can provide them with the legal advice and representation they want without the lawsuit they don’t. There’s no reason lawyers can’t provide legal dispute resolution services beyond litigation. There’s no reason the only tool in the lawyer’s toolbelt has to be the litigation hammer.

Lawyers won’t get these new clients doing things the same old way. Simply ending their lawsuits with mediated settlement agreements won’t somehow attract the clients who are opting-out of the legal system. They will come to understand that they can only serve these clients by providing them with consensus-oriented processes.

Lawyers need to become familiar with – and competent in – a completely different service. They must learn the skills that make consensus-oriented processes so powerful.

Why Mediators Should Care

Lawyers have something unique to bring to consensus-oriented processes: legal advice and support. Lawyers owe an exclusive duty of loyalty to their clients and can be their ally. This is valuable stuff in a mediation, because it’s the exactly the kind of stuff mediators cannot provide.

What some mediators don’t understand is that clients came to them, not because they don’t want legal advice, but because they don’t want the lawsuit they think comes with it. As more lawyers provide legal representation in non-adversarial processes, the clients will figure out that they can have their legal advice and their consensus-oriented process, too. Having either legal advice or a consensus-oriented process is a false choice. They are learning they can have both.

As these clients learn they can have legal advice and representation in a process that isn’t litigation, they will seek out mediators who can work with their lawyers. Mediators will have to become familiar with – and competent in – a different way of mediating. They must learn the skills to work with legally-informed clients and their lawyers.

Lawyers and Mediators as “Resolvers”

When the general counsel of some of the largest multinational corporations call for lawyers to become “resolvers,” you know it’s not because they can’t afford litigators. And it’s not that they want their lawyers to stop being lawyers. They’re telling us they want a choice – they want something different. They want options beyond litigation.

They want a new tool. It’s time for us as lawyers and mediators to provide it for them. If we don’t someone else will.

Biography

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Jeff Bean mediates negotiations for growing business in Seattle, Washington, and the Pacific Northwest.  He provides customized processes that are prompt, private, cost-effective, and designed to reach agreement. Jeff works to build the capacity of the legal profession to provide competent legal representation to clients in consensus-oriented dispute resolution processes.  He is Chair-Elect 2009-10 for the Washington State Bar Association Alternative Dispute Resolution Section.

 

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Website: www.beyondthecourthouse.com

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Jeff Bean,   Seattle WA	mediate.com@beanlawfirm.com      09/21/09
Thank you for your comments
Thanks for your comments, folks. @Ratul, I'm glad you found it interesting -- and I hope it can be a useful resource for continuing a dialog that I think needs to happen. @Carol, it is this lack of understanding between professionals -- one that manifests itself as dogma and animosity -- that encouraged me to put digital pen to paper. As we know, you can't have a disagreement until you understand each other, and we conflict professionals don't understand each other yet. I'm also looking to separate out the various issues that are often conflated: process, style, tools & techniques. The dogmas tend to group them in opposing packages (lawyers-litigation-shuttle-late-evaluative versus non-lawyers-non-litigation-joint-early-facilitative). But they can be put together in many different ways if we step back from the orthodoxies. @Debra, I also find the situation disturbing -- which I attribute to the presumption of competition -- and that's why I wrote. Personally, I find competition a less-than-helpful notion -- maybe useful if you're Pepsico or Coca-Cola, but for me, collaboration and abundance are more helpful viewpoints. There are plenty of people out there who can use our help. But many lawyers don't understand that they're not working with certain clients because the only dispute resolution tool they offer is litigation. Many mediators don't understand that these clients want and can use legal advice and support. There is opportunity for integration here, on many levels. There is a time for mediation, and a time for litigation, but can we also see that even these processes are not necessarily mutually-exclusive? When we don't understand each other, we are blinded from seeing these possibilities. Thank you for taking the time to comment, and thank you to all for reading. Keep up the discussion! Jeff Bean Add New Comment

Carol  ,   Puyallup WA	09/18/09
I totally agree with you. Add New Comment

Debra ,   Portland/Beaverton OR	09/18/09
I find this a little disturbing.
What I find most problematic is the notion that non-attorney mediators and attorney-mediators are in some type of adversarial competition with a sum-zero component. Don't we all share the common interest of wanting to help people address and, hopefully, resolve destructive conflict? Some situations may be better suited for litigation, some for mediation. Sometimes it's a matter of timing - when a situation is ripe for either mediation or litigation. If we continue to view the relationship between mediators and attorneys as adversarial, we are doing an enormous disservice to those we might be able to help. We need to begin to think integratively, rather than distributively regarding the options we have to offer. Thank you. Debra Healy Add New Comment

Carol  Bower,   Puyallup WA	cb@managingconflict.com      09/18/09
Bravo, Jeff. You captured the difference of the mediation v. mediation brillantly. What I continue to find so troubling is the hostility, animosity, and total lack of collaboration among the mediation community when it comes to the questions "What is mediation" and how dogmatic, vociferous, and polarizing mediators are with each other. Really, how many times have we heard "that isn't really mediation," "what do you mean that you only use shuttle mediation", "mediators v. non-attorney mediators". Add New Comment

RATUL GOSWAMI,   Guwahati,Assam IN	ratulgoswami@gmail.com      09/17/09
THANKS
This Article "Lawyers & Mediators" is really a resourceful article from this writer.I am beeing a lawyer have found it very interesting one.Thank you. Add New Comment

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