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Gerry Spence, Marshall McLuhan, and What Lawyers Do In Mediation

by Arthur Pressman
September 2017 Arthur Pressman

Noted lawyer Gerry Spence is as accomplished a painter as he is a trial lawyer.   In both of these activities Spence creates canvases.  More importantly, he understands in both pursuits that he is the painter and not the painting.  Unlike Marshall McLuhan’s famous phrase, Spence as lawyer is the “the medium [and not] the message.”  What does this have to do with mediation, you may ask. 

In July I was an observer at the Vienna IBA/ VIAC Joint Mediation competition for approximately 35 international law schools (VIAC is the Vienna International Arbitral Centre).   When I observed mediations in Vienna as part of the international competition, I noted a primary difference between US-style mediation and what I will call “international-style” mediation – the role of the lawyers in each is very different.  In the Vienna mediations, the lawyers’ role was to provide legal advice to clients during the actual mediation; the lawyer was not the client’s mouthpiece or representative when it came to telling the mediator about the dispute or offering potential solutions to the dispute.  The clients were their own voices and didn’t rely on the lawyers to speak for them in joint session on business or negotiating issues.  To use Gerry Spence as a metaphor, in US mediations the lawyer is too often the painting and not the painter.  In joint sessions, US lawyers often present the clients’ positions, describe the dispute and its history and stake out positions, not unlike how they conduct themselves in court.  In the “international-style” mediations I observed in Vienna, the lawyers were not even the painters, much less the painting; they were their clients’ legal advisors.

But there’s a big difference between court proceedings and mediation that explains in part at least why the US lawyer speaks while the client listens – it’s because in court, the rules only allow a client to speak from the witness stand, and then only in response to questions.  In court, the lawyer’s license to practice is the lawyer’s license to speak, generally to the exclusion of the client except as witness.

There’s no comparable rule in mediation.  Indeed, as mediators know, other than confidentiality, one can argue that is are no, or few at most, rules in mediation; that’s its beauty and what creates its potential for magic.  It’s not any set of rules that requires US lawyers to do all the talking in joint sessions; it’s often habit, nothing more than a carry-over from an adversarial, rule-bound environment to an entirely different environment.  The question is whether US mediation may be better served by lawyers acting as legal advisors while empowering clients to take on a greater joint session role by addressing the mediator and the counter-party to the dispute.  Less is more is a difficult lesson for anyone to master, especially a US-trained lawyer with Perry Mason DNA, but I submit, it’s a lesson we all need to think about more.   By the way, I think mediators know that more client involvement is better than more lawyer involvement; that’s why in private caucus sessions, clients get much of the mediator’s attention.

In that regard, another big difference between the “international-style” and US mediations that I observed is the different role that joint sessions take in international mediation.  That different role may help explain why lawyers behave differently in international mediation than in US mediation.  More on that for my next article.

 

Biography


As a mediator with more than 30 years of franchise experience, Arthur Pressman is well suited to help franchisees, franchisors and investors resolve franchise and other business disputes in the best way for them and their business interests.  His mediation philosophy is facilitative, respectful and grounded in years of experience that litigating or arbitrating a dispute – win, lose or draw – rarely is a satisfactory experience for anyone, clients and lawyers included.

Arthur has trained with both JAMS and the American Arbitration Association to serve as a mediator.  And for the last five years, he’s taught at Boston University School of Law, including alternative dispute resolution, negotiation and ethics.  Previously, Arthur taught the business aspects of franchising in the Babson College MBA program and was a franchisee himself.



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