This blog is about some attorney responses to my blogs, which have been so bizarre, I had to write about them.
I shouldn’t fault attorneys that don’t understand mediation. When they attended law school, they weren’t taught about mediation or alternative dispute resolution. Attorneys are trained in dispute resolution now, and I have been invited and have spoken at several law schools on the topic of mediation.
Law schools trained lawyers to do what lawyers do: Argue, get evidence that help them argue and then argue some more. Just the opposite of mediation, right? That is why our professions are so different.
As a mediator, I try to help couples resolve their disputes by cooperating and working together.
Expense of Mediation
One attorney argued that mediation is generally not less expensive, because in mediation, you also have to pay two attorneys, two coaches and two accountants.
Whaaaaaaaaat? I mediate with the couple in a room and there are no other people present.
To be fair, in the last 1,000 cases, I’ve had a handful that needed lawyers and accountants present.
The attorney also complained that the mediation process promised it would achieve mutual respect and understanding of the couple’s differences so they would go off into the sunset holding hands and smiling.
Whaaaaaaaaat? I only ask the couple to control their anger and be respectful of each other during the mediation process. Hopefully some of this will carry forward in their post divorce communications, especially where children are concerned.
During mediation, I try to get couples to agree on a more rational, rather than emotional, level. The agreement is like a business deal where you have to decide reasonably and logically how you’re going to handle the financial issues and decisions regarding the children, i.e. how you’re going to parent them and share time with them.
Lack of Trust
The attorney goes on to say that couples that don’t trust each other or really hate each other are not benefited by mediation.
Whaaaaaaaaat? Does he really believe that all my couples walk into my office smiling and say, “We can’t wait to start cooperating with each other!”
They are sometimes very angry. Some couples have known each other for 30 years so there’s lots of baggage.
I’m not trying to fix their marriage, I’m just trying to get them through the mediation process by cooperating and not yelling so much. I tell them, if you are going to be angry and yell, it is going to take more time and cost more. And the only way we’re going to get through this is if you cooperate. If you’re going to be angry, it’s just going to take longer, cost more and stand in the way of an agreement.
More Harm than Good
Another attorney said that mediators claim mediation is cheaper than litigation because it’s a way of marketing their mediation practice.
Whaaaaaaaaat? The couple can fight it out in court and spend a great deal of money or come to mediation and discuss the same issues. Which sounds more expensive? Cooperating? Or fighting?
I’d like to leave you with one last comment from an attorney that really understands what mediation is. Her comment, and I’m going to paraphrase, was:
“The blog responses sound like a bunch of litigators just running their mouths because they’re afraid of losing cases and income. They don’t understand mediation. They were never trained in mediation in law school and they just want to keep doing what they’re doing and not realize that litigation isn’t for everybody. The one-size-fits-all approach that they have doesn’t work.”
Comments From Social Media
Don: As an experienced attorney and mediator, I share your sense of bewilderment and perhaps frustration. The core problem, IMHO, is that to a man whose only tool is a hammer, every problem looks like a nail. To the extent we only teach law students the litigation model, every matter looks to them like it needs to be litigated. Happily, more law schools are weaving ADR into their curriculum, and more Court systems are making various forms of ADR part of the dispute resolution landscape. Slowly, lawyers are becoming aware that their are tools other than hammers. And maybe they will no longer view litigation as the only way to “nail down” a resolution. FWIW….
David Barry, J.D. MSW, LSW
One problem in our area (Seattle) is that the mediation model most attorneys get exposed to is the settlement conference where parties and their attorneys all show up and sit in different rooms, and the mediator runs back and forth evaluating the cases. I call this “power brokering”. The attorneys who are used to this model generally have no idea what we are talking about when we bring up facilitative mediation like you do. You say “mediation” to them and they automatically think “settlement conference”.
Michael Fancher, Seattle Collaborative Lawyer
Don, I believe that every divorce lawyer should know the basics in regard to mediation (and collaborative divorce), as I believe that lawyers have an ethical obligation to share options with potential clients. And a further obligation to set out the choices in a way that is as respectful and unbiased as possible. It is up to the client to decide which process best meets his/her needs.
Lee Chabin, Director of Training Community Mediatin Svcs. Inc
In my town, lawyers choose lawyers who have no training in mediation to conduct the mandatory 3 hours of mediation in family court. I’m a CDFA and I’ve been trained as a mediator. I’ve seen lawyers intentionally choose lawyers to strong arm clients to settle instead of mediating the divorce cases. And let’s not bring up the subject of a collaborative divorce to most of them (which I am trained in as well)! I’m laughed at by many attorneys when I broach the subject regarding a collaborative divorce. Fortunately I share office space with a trained mediator who is also an attorney. She gets it. But that is rare.
Isn’t that a bit like saying that you don’t fault a doctor for malpractice because that particular procedure was not covered in med school?
Baron Buck, Sales/Marketing
Attorneys who do not know or do not take the time to learn how the mediation process works have all expressed a fear for the process as they believe that it will take money from them or rob them of control over there clients. This therefore drive them to not want to participate in mediation or to encourage their clients to engage in the process.
Dawn Shields, Attorney, Mediator
Don, yes, some attorneys’ assumptions about mediation are truly wacky. Law schools haven’t been helpful but short of purely clinical mediation programs that would enable students to observe actual cases, it’s doubtful that law school mediation instruction will contribute much if anything of practical value.
Mediation would be a great addition to any law school curriculum; it could only benefit he student. I learned so much through my Masters in Dispute Resolution, not only about mediation how we communicate during mediation, litigation, and client intake.
Michelle Kruse, Paralegal, Mediator
I am particularly interested to learn of other people’s experiences of lawyers and their attitudes to mediation. In Australia, we have a well developed legislative framework which mandates alternative dispute resolution prior to commencement of litigation in some cases and during litigation in other cases. Despite this, our experience is that lawyers generally have a very poor understanding of the concept and, even when they do engage with it, they tend to bring to the table an approach which is litigious in its nature and much more akin to the traditional adversarial model practiced in the court room. I suspect that this is due in large measure to the lack of any formal training at under graduate level in our law schools. I suspect from Mr Sinkov’s comments, supported as they are by Mr Bertram and M/s Kruse, that you have a similar problem in the United States. I think it is incumbent on those of us who do practice law and appreciate the benefits of mediation to do what we can to bring about a shift in the adversarial culture which prevents Alternative Dispute Resolution from becoming Primary Dispute Resolution.
John Woodward, Turnbull Hill Lawyers
Carol Straus, Integrative Lawyer, Mediator
Generally speaking, attorneys don’t understand mediation – how can you say such a thing? BECAUSE it’s unfortunately true.
Mark Baer, Family Law Attorney, Mediator
It amazes me that attorneys still have that kind of response to mediation. I would have expected that twenty years ago. But today?….
Karen Covet, Family Law Attorney, Mediator
My favorite lawyer term is “adversarial mediation.”
John Turley, ACR
This is my biggest complaint when dealing with litigators! I went to a few mediation trainings with litigators and they could not wrap their heads around the pure process of mediation, which is allowing the parties to remain in control of the process. I’m just starting out as a family mediator and it’s nice to know that my mediation ideals align with someone who has been doing it a very long time.
Lisa Scholz, Family Services Professional, Mediator
They don’t understand a lot of things. You can ask an attorney a question and nine times out of ten they will dance around the answer. If it weren’t an income for them mediation would probably never cross their mind. With settlement based mediation they are really not offering much to benefit society. I don’t know a lot of mediators, but the attorney ones seem to take mediation as a joke. I really don’t know why they would even consider letting an attorney be a mediator. I guess they are like police officers there are some that are good.
Those are interesting comments. And, I do know a lot of family law attorneys who are trained in mediation and or collaborative law. It’s good to know not all lawyers are like them. Don, the last comment you quoted sums it all up.
Very interesting comments. Thank you for sharing, Don.
Unfortunately, from my personal experience most, not all, mediations involving attorneys as neutrals suffer from exactly what the commenting attorney’s describe as problems. Attorneys for the disputing parties also have a difficult time in their mediation role as counselors. Both issues are due to the ingrained training and experience of the courtroom. To them mediation and arbitration are mere extension of the legal system instead of alternatives to it. Not all attorneys are deficient in their mediation skills. The exceptions are those that have endeavored to educate themselves in the discipline of mediation. This can be said about any mediator with a background from any profession. There are tried and true processes that maximize the success of mediation. Evaluative or settlement-based mediation is sometimes necessary but should never be presumed as the best or only alternative. Although the skills and acceptance of the standards and practices of mediation are changing in the legal community they are not changing quickly enough. And unfortunately the majority of mediations referred by the courts are to attorney mediators. We must all overcome our biases and learned behaviors in order to mediate successfully.
Sam Chapman, Mediators Beyond Borders Int.