At the recent ABA Section on Dispute Resolution spring meeting, I attended one program whose title promised an answer to the fascinating question “What Do Litigators Want?” when it comes to mediator practices.
All well and good, but the question I was most interested in was very different: “What do your clients want? ”
Alas, I never got a straight answer, although the guy sitting behind me whispered his thanks in my ear and said, “I’m glad you asked that. I’m a client myself, and I can tell you right now, my lawyers don’t have a clue what I want.”
So what can we - attorneys and mediators alike - do to help clients choose and participate fully and meaningfully in the right process for them and their dispute? Here’s my modest proposal, with a tip of the hat to Joseph P. McMahon, Leonard Riskin, and Nancy Welsh:
- Start with the premise that informed consent is vital for all participants - for lawyers, for clients, and for mediators. And let us all remember to whom the dispute and ultimate resolution belong - not the lawyers, not the mediator, but the client (remember them, anybody?).
- Educate lawyers and other likely consumers of ADR services fully about the various philosophies of mediation practice, providing them with accurate information about the benefits and drawbacks of each.
- Insist that mediators themselves be well informed about the varieties of practice in their own field so that they can in turn provide accurate information to prospective clients - and to journalists who come calling for interviews.
- Develop better systems for intake, to include an assessment of the conflict that can guide the design of a process best suited for the parties and the issues and that identifies the parties necessary for resolution before scheduling the mediation.
- Mediators can emphasize the importance of preparation to lawyers and their clients; lawyers can do their part to encourage their client’s knowledgeable, fully informed participation.
- Allow clients full say in shaping the process and defining the issues to be sure that mediation addresses all the concerns relevant to them and to the resolution of their dispute, not merely the legal ones.
That would at least be a start. If you have other ideas, by all means, weigh in. I’m all ears.
(With apologies to the gang at everybody’s favorite client-centered blog, What About Clients?)