The current newsletter of the Association for Alternative Conflict Resolution features an article on the role of non-lawyers in mediation. Here is the link: https://lnkd.in/gzxjcDky to the article.
Here is my reaction to the article, the obverse side of the discussion. This piece is slightly condescending toward mediators implying a superior position of the lawyer within the broad realm of conflict resolution. I contend that non-lawyers are as good and perhaps better Alternative Dispute Resolution (ADR) practitioners than lawyers. Why? Because the majority of cases are not rooted in purely legal issues, but rather financial, personal and unmet needs. Disputants want their positions to be heard by the other party primarily to voice their thoughts on issues that heretofore they never expressed to the other side directly or the key discussion points remain unspoken.
A skilled mediator, as an active listener, will facilitate the surfacing of these points from a purely neutral perspective. Here is where the mediator adds value to the disputants by helping them to articulate their respective positions and needs.
Mediation focuses on the process driven facilitation of a mutually acceptable solution between disputants based on their decisions and respective positions with the neutral assistance of a trained mediator. The people in conflict create their own solution or not based on the flow of the facilitative process. Legal issues may arise; however, it is best to outboard them and subsequently refer them to legal counsel while concentrating on the immediate dispute elements. Legal points should not be raised for protracted discussion within the framework of the facilitative mediation process.
There are many fine attorney/mediators who concentrate on the multi-dimensional facets of the ADR profession with their legal expertise placed in separate compartments. In my experience, some attorneys oftentimes play to their strengths by assuming an unnecessary “adversarial mediation” position with a slant toward the law. The ADR session should be focused on the dispute issues which are typically not rooted in legalities. I understand a lawyer’s perspective; however, it is more important to be an active listener and facilitator within the process of resolving disputes rather than a litigator.
The cases that I facilitate in mediation whether they be civil, probate, workplace conflict or family issues typically involve miscommunications or misunderstandings between the disputants. I’d rather see lawyers and non-lawyer ADR specialists concentrate on being a coach, advocate, organizer and ally to their clients according to Professor Bernie Meyer’s excellent work Beyond Neutrality. Here are the areas where ADR specialists render the strongest empathetic value to their clients and where disputants need the most help and support. Listening, not litigating, is all important.
An additional point concerning the above is the costs associated with court appearances and attorney fees vs. those of mediation. ADR in its various forms is substantially less expensive, as well as more time efficient, than the costs associated with legal proceedings. What are the cost differences? Generally, there is at least a 20- 25% difference in favor of ADR vs. litigation when all of the attorney and court related costs are taken into account. My conclusion is based on my study, analysis and comparison of the total costs when comparing the two approaches to conflict resolution.
From an ADR point of view, attorneys may present an additional layer of overhead in terms of their client costs, time and the diversion from the basic aspects of the dispute if they concentrate on legal issues rather than the facilitative mediation process. Legalities may obscure the real points which are the clarification of previous agreements, (mis)understandings of the details and miscommunications between the parties. Let me qualify my point further by expressing my admiration for attorneys who allow disputants to express their respective positions within the facilitative process without concentrating on points of law. The essence of mediation is the creation of a mutually acceptable solution to the conflict designed by the disputants on their mutually agreed upon terms with the facilitative guidance of the trained mediator.
This is why the Alternative Dispute Resolution (ADR) profession exists to provide the Best Alternative to a Negotiated Agreement (BATNA). This means settling a dispute confidentially via ADR with the assistance of mediators rather than appearing in court before a judge or magistrate. This is my position on the above subject with the understanding that a successful ADR specialist does not need to be a lawyer to succeed in the field.
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