After attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.
The June 2009 newsletter of the Resolution Systems Institute is out and includes a review of a recent book (PDF), Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, by Dr. Tamara Relis, a British Academy Research Fellow in the Law Department of the London School of Economics and Political Science. Relis’s book describes a vast perceptual gulf between lawyer and client, who hold opposing views and expectations of mediation. From the review:
Relis uses quotes effectively to demonstrate the parallel worlds lawyers and parties inhabit. Moving chronologically from parties’ aims in litigation through their experiences with mediation, the quotes show that lawyers’ and clients’ views and experiences were often completely different. When asked what the plaintiffs wanted from litigation, lawyers unanimously stated it was entirely, or primarily, money. Plaintiffs, on the other hand, discussed a need for explanation, admission of fault by the doctor and/or hospital, and apology. Money was not their focus. These parallel worlds had a significant impact on the cases, the mediations and the resolutions because lawyers maintained control…
Relis documents striking differences not only between lawyers and clients but also between men and women:
Interviews also indicated gender differences among lawyers and parties in perspective and approach to mediation, and among mediators in their ability to control the lawyers. Female lawyers were more likely to see merit in the emotional aspect of mediation. Female parties were more likely to feel trepidation about the mediation, to be more concerned about how their statements were perceived, to be influenced by mediators’ statements and behavior, and to be less likely to talk during the mediation. Female mediators were viewed by the parties as being less in control of the lawyers and the mediation.
An excerpt from the first chapter is available for downloading.
Dr. Relis is also the author of an earlier work, “Consequences of Power,” an article that appeared in Harvard Negotiation Law Review and available as a PDF download at the Social Science Research Network. It describes a disconnect between attorneys’ objectives and those of their clients and shows that the intentions of plaintiffs and defendants in mediation are more closely aligned than one might suppose–and all too often thwarted in their desire to communicate with each other.
I hope that my brothers and sisters at the bar are listening.
While parties often make formal demands and offers going into mediation, the underlying interests motivating those positions are not always as clear. Is the plaintiff’s demand motivated by hard costs...By Ryan DeMotte