On November 3, 2012, the Southern California Mediation Association held its annual conference. I was asked to address two important points to mediators who are NOT attorneys as part of a Los Angeles County Superior Court approved program for non- attorneys who wish to be on its panel of mediators. The points are:
- The value of having a mediator who is not an attorney; and
- How to convince an attorney to hire a non-attorney mediator.
Being an attorney, I admit my bias in favor of hiring mediators who are attorneys. So, I spoke to one of my colleagues who is an excellent mediator and NOT an attorney. She referred me to an article entitled, “Should a Mediator Also Be An Attorney?” by Cris Currie posted on Mediate.com in August 2000 addressing this topic .(Currie) The author recites two studies, one conducted in 1989 and a follow-up in 1995, which showed that having ANY TYPE of degree does NOT insure competence as a neutral.
The article explains that people assume two things;
- That mediation is a natural extension of legal training and is a skill readily acquired by attorneys; and
- In legal disputes, i.e., litigated cases, legal experience is needed in order to resolve them.
The article then explains that both assumptions are wrong. Legal training does not insure competence as a mediator; in fact, no degree does. And “prior professional experience
The article refers to a third study which found that “lawyer mediators tend to stress legal knowledge and skills – such as dwelling on the facts of the case…” (Id.)- to the exclusion of looking at what is really going on- i.e., the relationship, the emotions and communication issues so that the “symptoms” are resolved but not the real underlying issues.
If anything, legal training works against being a good neutral because law school de- sensitizes attorneys to the emotional and other non-legal aspects of a dispute; there may be hidden agendas that attorney mediators- looking through their legal prisms- will miss. Lawsuits involve people in emotional conflict. To ignore this point truly misses the point!
Further- and I have seen this in my own mediations- law school teaches attorneys to be adversial whereas current mediation theory teaches a collaborative approach- a “win-win” solution. Thus, attorney mediators have to undo a lot of their training and then re-tool to be successful mediators.
So, if anything, the article explains that being an attorney is actually anthetical to being a good mediator.
Reflecting on this for a moment, I can see the validity of this point.
But, the article also points out that to be a good mediator, one must know the subject matter; one has to bone up on the areas of law and the process of litigation so that one has some understanding of the legal context surrounding the dispute and can talk to the parties about the trial process; many Plaintiffs and Defendants have no idea what a trial really entails: they think it is like their favorite legal TV show; they think they will be able to get up and testify at length. They do not realize that jury instructions will restrict their case as will direct and cross examination. To be a good mediator, one must know the trial process so that she can provide a reality check.
In addition, the mediator must know something about the law at issue so that she will not be making statements that are dead wrong and lose her credibility. From my own experience, I have learned that attorneys do not want to spend half of the mediation educating a mediator on the law; they want the mediator to have some understanding of it so that everyone can hit the ground running.
A colleague of mine- Jim Lingl- as his PHD thesis in dispute resolution- did a statistical study of mediated cases in Ventura County to determine if lawyer mediators or non-lawyer mediators had the better success rate. What he found is that statistically there was no overwhelming evidence that one group was better or worse than the other. Both groups appeared to be equally successful and effective at settling cases. See, Relative Effectiveness of Mediators and Attorney-Mediators in Court Annexed Mediation Program by James P. Lingl, Esq. at p. 6. ( Lingl )
The trickier question is how to convince an attorney to retain the non-attorney mediator. Again, my non-attorney mediator colleague had some suggestions:
- Appeal to their sense of fairness and own knowledge of the process ; Emphasize that it is all about the process;
- Educate them- give them practical information about the process and along the lines explained above- explain why an attorney-mediator may not be right for them; and
- Marketing via price breaks, discounts, et cetera.
So, it seems, contrary to my bias, that one does NOT have to be an attorney to mediate lawsuits; that, in fact, it may be preferable NOT to be an attorney. The trick though is convincing the attorney of this. A belated trick or treat?
…. Just something to think about!
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