Abstract
This chapter focuses on the issue of whether lawyers and mediation represent a good fit. It analyses such matters as whether lawyers are appropriate to act as mediators and the utility or otherwise of lawyer representatives attending mediation alongside or even in place of their clients. In exploring these themes the chapter examines traditional legal education, professional practice norms and general psychological traits of lawyers and analyses how these might impact upon the lawyer’s proclivity for mediation practice. Significant empirical evidence as to the impact and utility of lawyers in the mediator or mediation advocate role is analysed along with a review of how lawyers’ activity fits within different models of mediation and accords with the interests and desires of mediation participants. Evidence reveals both potential benefits and pitfalls arising from lawyer involvement in mediation and the need for careful consideration as to the training and regulation of professionals who engage with the mediation process. The distinct issue of judicial mediation is dealt with separately. While judges may share many of the attributes and skill-sets found in lawyers, the general role of judges as public adjudicators adds further complications to their involvement in mediation.
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Notes
- 1.
For definitions of evaluative and facilitative forms of mediation see Sect. 4.3.6.
- 2.
Riskin (1982).
- 3.
Including in the UK context, Roberts (1992).
- 4.
In his later work, Riskin admits that this is a broad brush depiction—see Riskin (2002), pp. 14–16.
- 5.
Riskin (1982), p. 45.
- 6.
Riskin (1982), particularly at part IV.
- 7.
- 8.
See discussion of lawyers’ cultural norms in Chap. 2 at Sect. 2.5.
- 9.
See Chap. 2 at Sect. 2.5.1.3.
- 10.
Daicoff (1997).
- 11.
Daicoff (1997), p. 1349.
- 12.
The competitive nature of Law School experience as well as the adversarial focus of much traditional law learning may of course amplify many of these characteristics—see Chap. 2 at Sect. 2.5.1.3.
- 13.
Daicoff (1997), p. 1344.
- 14.
The paradox of the mediator role is that mediators exercise their authority while concurrently rationing its use.
- 15.
Particularly through the medium of ethics training. See Brown et al. (2005–2006).
- 16.
Although my own work (Clark and Dawson 2007, p. 245) has found a link between training and mediation practice (at least in terms of proclivity to engage in mediation practice), it has been argued that mediation training may not per se be sufficient to engender increased and appropriate engagement with the process—see Riskin (1982), p. 42.
- 17.
- 18.
See, for example, Brusegard (2004) (Canada); Sommerlad et al. (2010) (England and Wales); Maharg et al. (2003) (Scotland). Increases in non-traditional ethic and socio-demographic groups entering the profession remain modest in many jurisdictions, however—see Wilder (2003) (USA); Maharg et al. (2003) (Scotland). The http://www.lsac.org/lsacresources/data/vs-ethnic-gender-admits-archive.asp (accessed 1 November 2011) record increases in accepted ethnic minority applicants for US and Canadian Law Schools of only 5.1% between the period from 2000 to 2009.
- 19.
See for example, Carrie Menkel-Meadow’s assertion that increasing numbers of women entering the profession may lead, inter alia, to more co-operative and less confrontational behaviour, more client participation in dispute settlement and a shift from the assertion of individualism to pursuit of collectivism—see Menkel-Meadow (1985).
- 20.
See Sect. 4.3.9.
- 21.
Equally in other contexts where lawyers are typically absent, such absence may reflect the limited importance or value of the dispute in hard terms and resulting unavailability of lawyers rather than any process design which aims to exclude their presence.
- 22.
Mays and Clark (1996), p. 90. Although the practice in family mediation in Scotland is for participants to take legal advice regarding any settlements produced in mediation.
- 23.
Rosenberg (1991), pp. 487–491.
- 24.
See Chap. 2 at Sects. 2.4 and 2.5.
- 25.
See for example, Rosen (2002).
- 26.
Holding an inflated initial position.
- 27.
Hoffman (2003), p. 3.
- 28.
- 29.
The two general approaches delineated by Williams were ‘cooperative’ and ‘competitive’. Schneider preferred the terms ‘problem-solving’ and ‘adversarial’. It is worth noting that lawyers may use positional bargaining out of habit even though they may express a preference for a problem-solving approach, see Heumann and Hyman (1997).
- 30.
Nelken (2005).
- 31.
Genn (1987), pp. 131–132, 166.
- 32.
Menkel-Meadow (2004), pp. 107–108.
- 33.
Howell (2005).
- 34.
- 35.
Adversarial lawyers may be wrong but they are never in doubt!.
- 36.
Macfarlane (2008), Chaps. 3 and 4.
- 37.
Coope and Morris (2002).
- 38.
Sarat and Felstiner (1997).
- 39.
Myers and Wasoff (2000).
- 40.
See, for example, Eekelaar et al. (2000).
- 41.
Through, for example, legal rules regarding the interests of children that must be reflected in any settlement reached.
- 42.
Collaborative law dictates that party representatives promise to seek resolution of the dispute with the opponent in a consensual manner and generally precludes litigation of the dispute (by that lawyer).
- 43.
Given the view that family practice may be considered fertile ground for the development of mediation, the authors note, “[f]or those of us from outside the family law field, this [prevalence of adversarial lawyering] seems shocking”—Schneider and Mills (2006), p. 617.
- 44.
See the discussion in Chap. 2 at Sect. 2.3.1.
- 45.
See Melville and Laing (2010), p. 170.
- 46.
See Chap. 2 at Sect. 2.5.3.
- 47.
But see Sect. 4.2.3 below regarding lawyer behaviour in the process.
- 48.
Rundle (2008).
- 49.
Rundle (2008), p. 82.
- 50.
Saville-Smith and Fraser (2004), Table 4.2. Interestingly, however, clients were less likely (a mere 16%) to view control as a benefit, see Table 4.6.
- 51.
At least in the sense that they do not envisage that mediation leads to an increase of the time that clients spend in reaching a resolution—Sela (2009), p. 52.
- 52.
McAdoo (2002), p. 473.
- 53.
Wissler (2002), p. 658.
- 54.
For a classic treatment see Welsh (2001).
- 55.
Lande (1998).
- 56.
Lande (1998).
- 57.
See also Kuhner (2005) (finding that lawyers typically dominated court-connected mediation sessions at the expense of their clients in USA and Argentina).
- 58.
See, for example, McAdoo (2002), pp. 472–473. This issue ties in with the timing of mediation. When mediation is attempted at an earlier stage in legal proceedings (or indeed before they have commenced) then discovery levels are likely to be reduced. Lawyers may baulk at pre-discovery scheduling of mediation, however, on the basis that the case is not yet ripe and negotiations at mediation ill-informed by the legal dimension to the dispute.
- 59.
With lawyers often agreeing to “not invite” defendants to the mediation: Relis (2009), Sect. 1.2.
- 60.
- 61.
Relis (2009), p. 11.
- 62.
Relis (2009), pp. 15–17.
- 63.
Macfarlane (2001), Chap. III.
- 64.
The “pragmatists”.
- 65.
The “instrumentalists”.
- 66.
- 67.
Brooker (2005), pp. 37–38.
- 68.
Clark and Dawson (2007), p. 234.
- 69.
Generally because of a small, specialised legal community and the need to foster good working relationships with professional colleagues.
- 70.
Mulcahy (2001), pp. 212–213.
- 71.
Mulcahy (2001), pp. 214–217. In Mulcahy’s view, the passing of control of settlement discussions to the client represented the biggest challenge for lawyers in mediation.
- 72.
See the discussion in Chap. 3 at Sect. 3.3.6. Although to what extent such demand may have been created by lawyers themselves is debatable.
- 73.
Niemeijer and Pel (2005), pp. 368–369.
- 74.
McEwen et al. (1995).
- 75.
McEwen et al. (1995), p. 1375.
- 76.
See the discussion at Sect. 4.2.2.
- 77.
Macfarlane (2001), Chap. III.
- 78.
Legions of lawyers I have spoken to in my own country and in other jurisdictions have spoken of the benefits that have accrued for their clients from their active participation in mediation.
- 79.
McEwen et al. (1995), p. 1394.
- 80.
Pollack (2007), p. 20.
- 81.
Such settlement heavy forms of mediation are of course often presided over by lawyers or judges. For a discussion see Sect. 4.3.
- 82.
The argument that power imbalances may not be alleviated and may even be exacerbated within mediation is a fundamental and longstanding critique of the process (Rueben 2000; Grillo 1991). Equally, of course the presence of lawyers on one side and absence from the other may exacerbate and create imbalances between the disputing parties. Japanese research, for example, has suggested that lawyer representation led to better financial settlements for parties in divorce mediations, particularly where the other party was not represented—Murayama (1999), pp. 66–72. The issues of handling power imbalances and achieving ‘justice’ in mediation are discussed in more detail in Chap. 5 at Sects. 5.2.4 and 5.2.5.
- 83.
Grillo (1991), p. 1597.
- 84.
Research into divorce mediation in Georgia, USA has revealed that a vast majority of participants found that having a lawyer present was beneficial—see Gordon (2002), Table 1.
- 85.
- 86.
I.e. how just clients view the outcome to be.
- 87.
Howieson (2002), para 75–85.
- 88.
Howieson (2002), Table 4.6.
- 89.
c.7% of respondents—Mantle (2008). The author of the report concedes, however, that the data set is too small for significant findings to be drawn from the survey.
- 90.
Chapter 5 at Sect. 5.3.
- 91.
Grillo (1991), p. 1598.
- 92.
Mays and Clark (1996), Chap. 5.
- 93.
See Chap. 1 at Sect. 1.1.2.
- 94.
- 95.
Currie (2000).
- 96.
Lande (1998), p. 5.
- 97.
Guthrie (2001), Pt II.
- 98.
Vindelov (2006), pp. 132–133.
- 99.
See http://www.nadr.co.uk/background/medlawyer.php Accessed 1 November 2011.
- 100.
According to Goldberg and Shaw’s research into what determines a successful mediator, the central conclusion to be drawn is that a—if not the—core element in mediator success is the mediator’s ability to establish a relationship of trust and confidence with the disputing parties. Such factors seemed to outweigh any process skills that mediators may hold—Goldberg and Shaw (2007), p. 414. Other recent research has identified such traits as doggedness, patience, effective listening and the ability to be flexible in terms of thinking practically and what process skills to use in any particular case—for a summary see Lande (2008).
- 101.
Although practical experience may be the best proxy for expertise.
- 102.
See, for example, Alexander (2006).
- 103.
In other areas, such as family mediation, training has typically been more extensive.
- 104.
Including an MSc in Mediation and Conflict Resolution I am involved in at Strathclyde University, set up in 2010, the first of its kind in Scotland.
- 105.
See, for example, in Scotland the CALM website at http://www.calmscotland.co.uk/plugins/faqmanager Accessed 1 November 2011.
- 106.
At Sect. 4.3.1.
- 107.
For example, in an evaluation of court-connected mediation in the Netherlands, lawyer mediators generally needed less contact time to reach an agreement than non-lawyers—Niemeijer and Pel (2005), p. 362.
- 108.
Notwithstanding that lawyers rather than their clients are often the true ‘buyers’ of mediation services—see Chap. 3 at Sect. 3.4.4.
- 109.
See the discussion of such matters in Chap. 5 at Sects. 5.2.4 and 5.2.5.
- 110.
At Sect. 3.4.4.
- 111.
See for example, McAdoo (2004), appendix A.7, finding that 70% of judges surveyed believed that “legal experience” and “substantive knowledge in area of case being litigated” were important mediator qualifications.
- 112.
Clark and Dawson (2007), p. 240 (Scottish lawyers); Brooker (2008), pp. 227–230 (English lawyers); McAdoo (2002), pp. 433–435 (American lawyers); Relis (2009) (Canadian lawyers); Sela (2009), table 4 (Israeli lawyers). Although research into the preferences of American law students found that a majority favoured mediators who were creative and elicitive in their approach rather than evaluative—see Goldfien and Robbennolt (2007), pp. 300–303.
- 113.
Relis (2009), p. 12 and Chap. 7.
- 114.
Van Winkle (2001), p. 41.
- 115.
Van Winkle (2001), p. 41.
- 116.
See for example, Stipanowich (1996), p. 105.
- 117.
Riskin (1996).
- 118.
In the sense that the norms on the basis of which settlement is reached are created by the parties—see Waldman (1997).
- 119.
Riskin (1996), p. 25.
- 120.
Riskin (2003).
- 121.
Riskin (2003), p. 30.
- 122.
Saville-Smith and Fraser (2004), para 4.2.
- 123.
See Love (1997), p. 944.
- 124.
Recent research by Stephen Goldberg and Margaret Shaw into what makes successful mediators has found that 33% of mediation advocates (mainly lawyers) valued evaluative behaviours, whereas only 10% of the mediators themselves referred to the value of such tactics—Goldberg and Shaw (2007), p. 393.
- 125.
Love (1997), p. 942.
- 126.
- 127.
Kovach and Love (1998).
- 128.
Although lawyer domination of mediation may in effect remove party choice in this respect.
- 129.
As Kressel (2007), p. 275 notes, there is a “very tight grip in the ADR world on the idea that the proper mediator is a neutral, nondirective facilitator of parties’ own search for solutions. Although it is often at striking odds with research evidence about mediator behaviour, this version of the role is pervasive in training programs and officially sanctioned discourse”. Also see the UK family mediation research by Greatbatch and Dingwall (1990) suggesting that mediators have agendas and seek to move parties towards desired settlement ranges. Similarly, in the context of mediation practice in the context of French industrial disputes, “[e]ven though most [mediators] and mediation training make it an absolute rule not to intervene in core issues, both direct observation and several interviews actually revealed the mediator’s will to be a participant in the discussion and not just act at a distance as in facilitation—Grima and Paille (2011), p. 442.
- 130.
For example, in the English homelessness mediation contexts—Ng (2011).
- 131.
See Stemple (2000), p. 379.
- 132.
Stemple notes that ”[t]he reality testing of pointed questions is at least.
partly evaluative and it is perfectly proper mediation”—Stemple (2000), fn 23.
- 133.
- 134.
Relis (2009), p. 12.
- 135.
McDermott and Obar (2004) (reflecting on a mediation programme in the US Equal Employment Opportunity Programme).
- 136.
Enterkin and Sefton (2006).
- 137.
Niemeijer and Pel (2005), p. 354.
- 138.
Niemeijer and Pel (2005), p. 367.
- 139.
Barry and Henaghan (1986).
- 140.
Bucklow (2007), p. 47.
- 141.
Wissler (2001) (summarising the findings of four American general civil and family mediation schemes).
- 142.
- 143.
In the sense that respondents generally favoured mediators offering opinions of the merits of disputes. Many also viewed that settlements in mediations that they were involved in were often primarily crafted by the mediators—Agapiou and Clark (2011).
- 144.
American Bar Association Section of Dispute Resolution (2008).
- 145.
Onn (2006).
- 146.
The differential between advice and information is hard to draw. While “information” in this context could be considered to be general information about the underlying legal norms to the type of dispute at hand, civil court process and available remedies, “advice” might include an analysis of the legal merits of the parties’ respective cases and a view on the most likely adjudicative outcome to be proffered by court. See Chap. 3 at Sect. 3.4.3 for a discussion in the context of the unauthorized practice of law.
- 147.
Lingl (2011).
- 148.
Niemeijer and Pel (2005), p. 362.
- 149.
Relis (2009), p. 17.
- 150.
Relis (2009), pp. 103–104.
- 151.
At Sect. 4.1.3.
- 152.
Waters et al. (1998).
- 153.
Kolb and Putnam (2005), p. 137 (internal citations omitted).
- 154.
Goldberg and Shaw (2007), p. 406.
- 155.
Gordon (2002), p. 139.
- 156.
Gordon (2002), pp. 141–142.
- 157.
Relis (2009), p. 22.
- 158.
Relis (2009), p. 23.
- 159.
Or active (as opposed to retired judges, who densely populate some mediation environments).
- 160.
Alexander (2006), p. 23.
- 161.
Alexander (2006), p. 23.
- 162.
For a review of different judicial mediation schemes across the civil and common law world see Alexander (2009), Chap. 3, fn 13.
- 163.
- 164.
The European Directive on Mediation (recital 12, article 3) recognises the distinction between judicial mediation and more traditional settlement functions, mainly on the basis that mediating judges are precluded from subsequently adjudicating the matter.
- 165.
Roberts (1993), pp. 555–556.
- 166.
See for example, Cratsley (2005).
- 167.
For criticism of ‘med-arb’ schemes in which a judge or arbitrator will consequently adjudicate a dispute in the event that their attempts at mediation have not been successful, see Newman (1994), pp. 173–178. Some commentators believe that sitting judges who mediate should not necessarily be precluded from adjudicating the same case subsequently at trial, not least for reasons of efficiency, in particular if the parties consent—see for example, Polster (2007). Additionally, in the civil law world, judges, such as those in Germany, who engage in settlement practices often consequently adjudicate the dispute—see Alexander (2009), p. 6.
- 168.
Roberts (1993), p. 556.
- 169.
Not to mention the arguable need to procure settlements reflective of legal norms. See the discussion in Chap. 5 at Sect. 5.3.
- 170.
- 171.
Discussed in Chap. 5 at Sects. 5.2.5.1 and 5.3.3.
- 172.
See for example, Brady (2007).
- 173.
See Polster (2007).
- 174.
Warren (2009), p. 5.
- 175.
Cratsley (2005), fn 11.
- 176.
Alexander (2009), Chap. 3, fn 15.
- 177.
Robinson (2006), p. 351.
- 178.
- 179.
It should be noted that these were former judges rather than sitting judges.
- 180.
Goldberg et al. (2009).
- 181.
- 182.
- 183.
Cratsley (2005), p. 13.
- 184.
See Cratsley (2011).
- 185.
Urwin et al. (2010), pp. 44–46.
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Clark, B. (2012). Mediation and Lawyers: Does the Cap Fit?. In: Lawyers and Mediation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-23474-3_4
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