Mediating between law and mediation: time for both sides to declare a cease-fire

Last week I got a phone call from a third-year law student interested in learning more about mediation. Toward the end of our conversation, she told me that her fellow students mocked her interest in mediation practice, dismissing it as “touchy-feely, Kumbaya-singing crap”.

Despite the fact that 21st century legal practice is going to demand more of lawyers than the moot courtroom skills that the first year drills into law students, these students have absorbed the message that negotiation and problem solving hold little value for the practicing attorney. It made me wonder what exactly their law school is teaching them.

Unfortunately, this contempt for and suspicion of mediation is not an anomaly in the law, although fortunately, too, I encounter it with less and less frequency these days as more lawyers are trained in mediation and more law schools teach mediation advocacy and negotiation skills.

Mediators, however, all too often show a similar disdain for litigation, as fellow blogger and mediator Chris Annunziata pointed out just like week, forgetting that the “alternative” in “alternative dispute resolution” denotes choice, and that sometimes court, not mediation, can be the best choice for disputants.

Bridging the divide between lawyers and mediators“, a series of posts I wrote two years ago, confronted this mutual distrust. As introduction I wrote,

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution…

My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.

I propose, in effect, to mediate between mediation and the law.

I think it’s definitely time to rerun this series here on Mediation Channel. Law students, lawyers, and mediators, take note:

Intro: Bridging the divide

Part 1: Valuing the rule of law

Part 2: What mediators can do for lawyers

Part 3: What lawyers can do for mediators

                        author

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >

Featured Mediators

ad
View all

Read these next

Category

Hey Justice Logic: Don’t Go Around EMPATHIZING

Check out Balkinization's Why is Empathy Controversial?  or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow  to...

By Victoria Pynchon
Category

The “What” of Mediation: When Is Mediation the Right Process Choice?

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR: While...

By Paula Young
Category

Sigurdson, Glenn: Mediators Do Not Eliminate Differences – Video

Glenn Sigurdson believes that the role of the mediator is to work with the parties to design a process that creates an opportunity to have a conversation about their differences.

By S. Glenn Sigurdson

Find a Mediator

X
X
X