Friday, January 12, 2007

Bridging the divide between lawyers and mediators

Bridging the lawyer-mediator divideAs an attorney and as a mediator I straddle two worlds. People have often asked me if reconciling these two professional selves is difficult, expecting that the gravitational pull that each exerts must draw me in opposite directions. It does not.

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. There's plenty of mutual distrust and even open hostility to go around. What's interesting is that because I've got credentials in both worlds, each side trusts me enough to tell me what they think about the other.

Among the concerns that attorneys have about mediators are:

  • Mediators will take clients and business away from lawyers.

  • Mediators who aren’t lawyers aren’t competent to mediate disputes involving legal issues.

  • Mediators who are lawyers want to play judge and make lawyers look bad in front of their clients.

  • Mediators are a waste of time and money--all they want to do is get everyone to get in touch with their feelings, hold hands, and sing kumbaya.

  • Mediation is the handmaiden of tort reform.
Among the concerns that mediators have about attorneys are:

  • Lawyers want to put mediators--especially mediators who aren’t lawyers--out of business.

  • All lawyers care about is billable hours instead of helping clients achieve the best outcome possible in the client’s interest, not the lawyer’s.

  • Because lawyers are adversarial, lawyers will make any bad dispute worse, destroying relationships and dissipating client assets.

  • Lawyers lack vision: the only outcomes they can see are binary--win/lose, black/white, good/bad.

  • Litigation is an (un)necessary evil.
Beginning next week I will begin a series of articles examining these concerns. 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.

* * * * *
Update: As the series unfolds, the links to each article will be posted below.

Part 1: Valuing the rule of law
Part 2: What mediators can do for lawyers
Part 3: What lawyers can do for mediators