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.