Volume 18, Number 7
October/November 2001

Considering Mediation

What Lawyers and Clients Should Know

By Robert D. Benjamin

Even though negotiation is 95 percent of what lawyers do day to day, most of us learned to negotiate by the seat of our pants. Until relatively recently, there were no courses on negotiation in law schools. While many lawyers are effective negotiators, others are not. And, in any given case, even if one lawyer is good, it still takes at least two to make a deal. The more lawyers there are involved on a case, the greater the odds that the negotiation process will run amok. To make things even more difficult, lawyers' egos often get in the way, as do unrealistic client expectations. That is why even the best negotiators consider it good practice to bring in an outside third party to facilitate complex negotiations.

Mediation is a three (or more) party negotiation; the mediator uses his or her authority to facilitate the negotiations. Some people hesitate to mediate because they erroneously believe that mediation means being nice and giving in. As a result, they are fearful of losing their rights and being compromised in the process. Many mental health professionals are supportive of mediation, at least in theory, for the therapeutic potential it offers in an otherwise harsh divorce system. They continue to struggle, however, with concerns about where counseling ends and mediation begins, and about their clients' emotional competence to effectively negotiate for themselves.

Some lawyers are clearly supportive of mediation and a few remain openly hostile, but the majority are still not sufficiently informed, leading to many misconceptions about mediation. Consequently, a good number of lawyers continue to just ignore mediation or damn it with faint praise-"It's nice for people who can agree and get along but it isn't appropriate for my client because...he'll intimidate her...she's a fanatic... there's been abuse...." Lawyers have good reason to carefully scrutinize mediation and the mediator. With the increase in mediation programs and mediators with varying degrees of skill and experience, clients need a vigilant attorney to actively monitor the process. For clients in mediation, the lawyer continues to play a vital support role as adviser and legal consultant so that clients can make informed decisions for themselves.

Why Mediation Is Underutilized
Mediation is not a panacea and not right for all cases, but it remains underutilized. Any case that requires negotiation could possibly benefit from mediation. Personal injury, contract disputes, employment and workplace matters (including Title VII and discrimination actions), health care, workers' compensation, criminal actions, environmental matters, land use and real estate matters, securities and business disputes, family and divorce, and child welfare matters are just some of the types of matters that have been mediated in recent years. Below are some of the chief reasons why lawyers are reluctant to recommend mediation.

Many rule out mediation as a matter of policy. A lawyer may believe the process is inappropriate for certain kinds of disputes, such as when there are allegations of child sexual abuse or family violence. There are moral overtones that encourage the conclusion that those matters preclude negotiation and require the swift and deliberate action of a court. Some lawyers even suggest that if clients want to mediate despite these circumstances, their judgment should be overridden because of the risks involved for themselves. While these are serious concerns that should not be dismissed lightly, they are somewhat disingenuous. Few lawyers will deny that matters of abuse are routinely negotiated in the courts-the only difference is the forum and the judge. There is no reason to believe that one's client would be unsafe in mediation if precautions are taken. The decision to mediate should be the client's, not the lawyer's or the court's.

Lawyers presume clients are incapable of making good decisions for themselves. While most lawyers claim to believe in client self-determination, their practice habits belie that belief. Some lawyers argue that "the parties are crazy and cannot be trusted even to be in the same room together....if they could, they wouldn't be in the mess they are in." Experienced lawyers, like many other professionals, tend to think they can make better decisions for their clients than the clients can make for themselves. When lawyers use the term "client control," they mean that clients should do as they are advised, or perhaps "ordered" is a better word! Mediators, however, presume that most clients with adequate information and sufficient time, support, and structure can make good decisions for themselves.

Many lawyers believe their client's interests and rights will be compromised in the mediation process. In the popular understanding of mediation, the mediator is neutral and not able or willing to protect either party. This leads to the conclusion that one's timid or inexperienced client will be taken advantage of by the other spouse. The truth is that no experienced mediator will let this happen, nor can your client be bullied into signing anything during mediation. You will always have the opportunity to make sure your client's interests are protected during and after the mediation.

The force of habit deters many lawyers from referring matters to mediation. Simply put, many lawyers are set in their ways. Mediation remains a nontraditional method and the old ways seem to work just fine. Between 90 and 95 percent of all cases are concluded without trial through lawyer-to-lawyer negotiation. However, many of these cases are finished at the last minute at the courtroom door. Clients often express frustration with such circumstances; they feel trampled and coerced. Too often, lawyers confuse the conclusion of a legal matter with the effective resolution of the conflict by the parties.

Many lawyers are hesitant to let cases go to mediation because they feel their fees are at risk. While it is true that lawyers may bill and earn less in fees if mediation is employed, generally speaking the net return is qualitatively better. Parties in mediation tend to view their lawyers more positively and constructively and are less resentful of legal fees. This will often translate into fewer grievances or fee disputes and more return business.

The first questions to ask yourself are, what do you think and how do you feel about mediation? If you are unalterably opposed, you will probably have little difficulty in discouraging your client's participation in the process. If, however, the purposes of mediation make sense to you-encouraging client participation and responsibility in the management of their disputes-then you still must address the valid concerns about whether mediation is appropriate for the matter.

The Choice: To Recommend Mediation to Clients or Not?
For some matters, mediation is not cost effective, the timing is not right, or one or both of the parties are so difficult that mediation is unrealistic. In complex matters, however, mediation can often have an advantage over a court determination. Judges will be the first to say that courts cannot effectively resolve conflict and are constrained to merely making decisions or interpreting the law. Most issues that arise in family law cases can be mediated-not just parenting responsibilities (custody, visitation, and decisions), but also financial responsibilities (child support, maintenance, school and health expenses, insurance) and property division.

At some point, a lawyer's willingness to consider mediation takes on a moral and ethical dimension. Just as a medical doctor can be held accountable for his or her failure to advise a patient of alternative, less-intrusive treatments for a serious disease, a lawyer may have a similar duty to advise clients of the various approaches to settlement other than trial or lawyer negotiation.

Choosing a Mediator
The mediator is responsible for protecting the parties and assuring that their decisions are informed and well considered. Therefore, the mediator's skill, training, and experience are important factors in the client's decision to work with a particular mediator. The mediator should be responsive to any question a party may ask about his or her professional background. If the mediator is to be effective, each party should feel personally comfortable with him or her. After all, the mediator will be privy to the most intimate details of the parties' lives. Lawyers can be particularly helpful in advising their clients about what questions should be asked and what factors to consider when selecting a mediator. This means that the lawyer needs to know enough about the process herself to accurately respond to her client's questions.

Training and professional background. Most professional mediators have completed training programs to become mediators. While training alone is no guarantee of competency, it at least demonstrates some commitment to being a good mediator. A good mediator is likely to be a member of some national, state, or local professional organization. (See "Mediation Resources" on page 32.)

Styles and approaches to mediation practice. The original profession of the mediator-lawyer, mental health professional, or certified public account, for example- is not as important as the mediator's skill. Remember, the mediator does not decide the matter. While particular expertise may be helpful in some instances, it can be an impediment if mediators overly rely on their own knowledge. That expertise can encourage the mediator to be evaluative and give recommendations. This not only undermines the parties' decision making but also intrudes on the role of the consulting lawyer.

There are some basic parameters that outline the approach of mediators:

  • Evaluative or facilitative. This is the extent to which the mediator gives advice, opinion, or recommendation or limits him- or herself to merely facilitating the process. Those that tend toward the evaluative risk becoming quasi or de facto arbitrators, while the facilitative can veer toward becoming counselors. There is no right answer; the process is important but then so is the outcome. Pursuing an outcome at all costs can undermine the process; at the same time, preoccupation with process can leave the parties confused and frustrated.
  • Broad or narrow view of the issues. Some mediators deal with only the issues presented while others consider underlying issues that may be unstated or may not be fully appreciated by the parties. Too narrow a focus may lead to an agreement that is not resilient or durable and will not hold up over time. Too broad a focus may lead to no agreement at all. Generally, effective mediators "reality test" agreements and try to address the major "what ifs." Any issue they sense could tear the agreement apart is considered appropriate for review whether the parties have directly raised the matter or not.
  • Cooperative or competitive. Most people think of themselves as either cooperative or competitive. Most experienced negotiators know that difficult situations require one to be a little of both.

Whatever a mediator's approach and style may be, mediators will only be as effective as their ability to connect with the parties, build some measure of trust, and organize the process so that it makes sense to all parties. Most mediators need to be fairly stringent about the process itself so that the parties experience a sense of progress, but at the same time they must be careful to avoid pushing any particular outcome. Good mediators should also be able to tailor their style of mediation to the needs of the parties and the context and circumstances of the dispute.

As the business of mediation develops, market forces have given rise to competitive marketing strategies. Some mediators have even begun to brand their style of mediation. For instance, "transformative mediation" is in vogue in some places, while in other quarters mediators sell themselves as "attorney-mediators." The brand of mediation is the last factor to consider when choosing a mediator; common sense, experience, skill, and personal fit are far more important.

Clarity. The mediator should be able to explain the mediation process clearly, including his style or approach, the rules, the structure, and an estimate of time and cost. Fees should be straightforwardly discussed. Most good mediators have written mediation agreements that spell out the responsibilities of the mediator and the parties. Prospective parties considering mediation may want to interview more than one mediator before making a decision about whether mediation makes sense for them and before choosing a particular mediator. Be wary of a mediator who overstates the advantages of mediation.

Preparing Clients for Mediation
Too often mediation is presented as an idealized process only available to people who are reasonable, cooperative, and trustworthy. If that were so, there would be very few cases appropriate for mediation. In truth, mediation does not rely on trust. Rather, it relies on the parties' willingness to reach an agreement that makes good business sense, is realistic, and is practical. You must understand this yourself in order to prepare your client properly.

The mediator's authority is negotiated with the parties in advance; the mediator then helps the parties' negotiation. More formally, the mediator facilitates the informed and consensual management of the issues or conflicts that are presented. During mediation, people can learn to negotiate issues with each other even when they were unable to do so in the course of their marriage. It is important that your client realizes that mediation is not counseling; the mediator should be clear about that distinction. Some parties find the mediation process to be a "healing" experience; others find the process to be merely a means of surviving a stressful and difficult life circumstance.

Mediation is safe. Many people are concerned that they will not be able to negotiate effectively with the other party and they will "lose." This is so especially when one party appears to be an experienced negotiator and the other party questions his or her own ability to negotiate. If the mediation process is conducted properly, there are four reasons why no party can lose or compromise any right or interest they have:

1. The mediator has the professional duty and responsibility to protect both parties; this means the mediator will ensure that both parties have all necessary information, know the issues, know the available options, and know the pros and cons of each option. Mediators are not neutral; it is their responsibility to make sure both parties are heard and to ask hard questions of each of them. Mediators are not disengaged, but are actively involved to assure that neither party is being taken advantage of.

2. The parties are strongly encouraged (and are often advised or directed) to obtain professional advice from attorneys, accountants, financial planners, or counselors at any time they wish in the course of the mediation process. No tentative understanding can effectively become an informed agreement if the parties are denied access to professional consultation. A mediator who discourages professional consultation by a party in the course of mediation should be viewed with suspicion.

3. The parties will not be asked to sign, initial, or in any way formally execute a proposed mediated memorandum of understanding. Therefore, no party can become legally obligated to an agreement. Only after both parties have reviewed the memorandum and consulted with their individual attorneys will they decide if they wish to be legally obligated-but this occurs outside the mediation process. For a mediator who is not an attorney, allowing signature is tantamount to the unauthorized practice of law; even for mediators who are licensed attorneys, it is a violation of their professional duty as a mediator. The Association for Conflict Resolution, an international professional organization of mediators, has standards of practice that establish the parameters of professional practice for mediators.

4. Any or both parties are free to withdraw from and terminate mediation at any time, for any reason, without consequence or sanction of any kind. The process must be voluntary if it is to hold any integrity. There is a fundamental difference between remaining in mediation because you have determined there are few other options and feeling coerced into remaining in mediation.

Mediation makes good business sense. Many parties think they can mediate only if the other party is "reasonable" like they are, or they are on good terms. That is not true. People who are distrustful and even angry with the other party can still successfully mediate an agreement. Clearly, if business people can negotiate their differences, or employees and management can come to agreement, parties to a divorce can do the same. For most people, with the protections in place, the negotiation of disputes makes good business sense. Mediation is less about cooperation and goodwill than it is about good business. Trust and goodwill are certainly helpful but not necessary for settlement to be reached.

Mediation does not make sense if one of the parties is consumed with "winning," and "winning" in this case means destroying the other party. Luckily, few people operate from this extreme perspective. Many people will at some point say and do silly and defensive things when they feel threatened; however, they should not be confused with those few extremists. An effective mediator should be able to manage the anger and frustration that usually accompanies a divorce.

The negotiation process that takes place in mediation, especially in difficult cases, can be grueling-but the formal legal process can be even more so. Mediation requires clients to take more direct responsibility for managing their situations. Many clients would like to believe they can just turn it over to their lawyer and be advised when it is over. Most lawyers know that it is not that simple. What clients need most from their attorneys is support, accurate information, and negotiation coaching. Most people can make good decisions if that help is available.

The Lawyer's Role and Responsibilities
The role of attorneys in mediation differs from their traditional role; they become expert legal consultants to their clients instead of taking the lead as the primary negotiators of the agreement. Mediation allows attorneys to do what they do best, and most commonly do in other kinds of legal matters: give their best advice and counsel. The decision-making responsibility is preserved for the clients. Lawyers also assure the integrity of the mediation process. Parties cannot make competent and informed decisions without sufficient legal advice. If clients appear confused or unclear about what is happening and why at any time during the mediation process, it may be appropriate for a lawyer to request a meeting with the mediator, both parties, and opposing counsel.

Many people mistakenly believe that lawyers get rich handling divorce cases; the most cynical even believe that lawyers are only out to generate higher fees at the client's expense. This is seldom the case; most lawyers are focused on protecting their client's interests, and, as they are trained to do, think defensively about everything their experience has taught them can go wrong despite the best of intentions. Clients do not appreciate the niggling details that must be ironed out in a complex matter. That takes time and time is money. Most lawyers realize that most people cannot afford to pay high fees. In fact, lawyers are often not fully paid for their services. A mediator can more efficiently and cost effectively handle the details, leaving the lawyers free to review and consult on the agreement. Lawyers representing clients in mediation are more likely to be paid their full fee, and the client is often more satisfied with and appreciative of their services.

The lawyers' responsibility is to advise their clients as they see fit and leave to the clients the responsibility of making their own decisions accordingly. The more complex the matter, the greater the importance of the lawyers' consultant role in the mediation process to assure that the parties are fully informed of their rights and responsibilities. The mediator cannot give legal advice, and will not supplant or duplicate the attorney's role. To become more familiar with the mediation process, especially as more courts are referring to mediation, lawyers might want to consider mediation training. Even if the lawyer has no intention of becoming a mediator, this training will heighten the integrity of the process.

Professional and Ethical Concerns
With the use of mediation becoming more commonplace, there is some concern for how it fits with previously accepted notions of legal practice. Some specific concerns include client confidentiality, the unauthorized practice of law by lay mediators, the role of mediators in preparing agreements, the place of formal discovery, and "good-faith" requirements.

Confidentiality. No state has extended statutory privilege to communications in mediation; many states have provided for mediation to be confidential as a matter of law, court rule, or policy. The Uniform Mediation Act encourages the mediation process to have those limited forms of protection. Essentially, this is in keeping with the common law principle that settlement discussions are precluded from discovery.

Confidentiality provisions, however, are not uniform. The parties can agree that the mediation be "open," allowing the mediator to disclose information or even make a recommendation. In most jurisdictions, confidentiality will be overruled by duties imposed on mediators to report child abuse, criminal acts, or other requirements regardless of the parties' agreements.

As a matter of public policy, private settlement is encouraged. However, in matters where there is a public interest in the outcome, such as product safety litigation or some medical treatment disputes, confidentiality in mediation is viewed as necessary to allow the parties the privacy they need to effectively negotiate.

Preparing agreements and the unauthorized practice of law. Preparing a specific memorandum of understanding is integral to the mediation process. As with all negotiations, a tentative written understanding is necessary to confirm the parties' agreements. That document, however, should not be signed by the parties in mediation so as to become legally binding. Only after the parties have had the opportunity for independent attorney review will the parties execute an agreement. That signing should be done outside of the mediation process.

A mediator, whether licensed to practice law or not, can give general information about the law and process. A mediator cannot and should not give advice. There is minimal risk of the unauthorized practice of law if a mediator does not allow the execution of agreements in mediation and the parties have counsel available. Most experienced mediators strongly encourage parties to have attorneys or at the very least to seek attorney review.

Conventional wisdom often suggests that mediation is rendered ineffectual without the finality of a signed agreement. That view is suspect because few people, after having engaged in the process, will back away from concluding an agreement without good reason, and if that reason exists, then they should not be held to the agreement by the principles of mediation. In short, most people will do what they say they will do, even if they do not entirely like it, if they have had the opportunity to consider the options and have been fully engaged in the process.

Formal discovery. Many lawyers hesitate to encourage mediation because of the absence of formal discovery. However, most effective mediators have incorporated protocols that assure substantial compliance with the rules of full disclosure. That disclosure will be subject to attorney review. Most experienced lawyers will attest to the fact that even formal discovery rules are not full protection against a party determined to evade disclosure. In fact, there may be more protections in mediation, as fact gathering can be done under seal and authenticated.

Good faith. People have many motivations to mediate, some purer than others. A determination of good faith is nearly impossible. Sometimes parties initially agree to mediate for dubious reasons-free discovery or the opportunity to intimidate the other party. Even then, however, there are many instances where, once in mediation, they do effectively negotiate an agreement. For the most part, good faith is not a requirement for mediation. If there is bad faith, it will become evident soon enough and all that will be lost is some time and money.

"Look What That Mediator Made My Client Settle For"
That comment from lawyers, still not infrequent, suggests both that the quality of mediation practice is uneven and that there is still a lack of understanding of the mediation process. In either case, the remedy is greater awareness of and involvement in mediation by lawyers. Traditionally, lawyers have judged the fairness of agreements by comparing the terms of a negotiated settlement to the presumed normative legal standard drawn from guesstimates of what a court might rule, interpretations of black letter law, or case precedent. Mediation practice has altered and broadened that review beyond outcome as the sole determinant of fairness to include the whole negotiation process.

In theory, no mediator can coerce an agreement, but there is no question that the practice style of some mediators emphasizes muscle techniques to a point that strains theory. Pressing for agreement at all costs is only a hair's breath away from creating a de facto coercive agreement.

At the same time, it is not unusual for parties in mediation to tentatively agree without coercion to terms that fall outside the parameters of what a court might do or what a lawyer might advise. The questions for lawyers are:

  • Did the parties have all available information and advice-legal and otherwise?
  • Did they know all the relevant issues?
  • Did they know all of the available options?
  • Did they know the risks and benefits of each option?

In other words, did their clients make substantially informed and consensual decisions that make sense for them? If the answer to any of those questions is "no," then the mediation process was either flawed or incomplete. In such a situation, counsel has an affirmative duty to question and, if necessary, constructively challenge the proposed agreement. In any event, the outcome alone is not a sufficient basis upon which to make a judgment about the fairness of a mediated agreement.

Mediation Resources

The following professional organizations and websites have good information about mediation:

The Association of Conflict Resolution (ACR). An organization recently formed by the merger of the Academy of Family Mediators and the Society of Professionals in Dispute Resolution. ACR members include mediators, facilitators, arbitrators, and other professionals involved in conflict management (202/667-9700; e-mail: spidr@spidr.org). A membership directory is available.

w ww.Mediate.com, Mediation Information and Resource Center (MIRC). Website that houses a vast resource of articles and referral lists of mediators in all contexts nationwide.

www.crinfo.org. Website that provides articles and resources on mediation and conflict management.

www.cpradr.org (CPR). Organization committed to conflict management; provides good resource information.

The International Academy of Mediators (IAM). Association of business and commercial mediators. A membership directory is available (e-mail: iam@mediate.com).

The ABA Section of Dispute Resolution. Both lawyers and others may belong

Robert D. Benjamin, M.S.W., J.D., has been a practicing mediator for more than 20 years and mediates in various dispute contexts. He is adjunct professor at Pepperdine University School of Law, the Straus Institute of Conflict Resolution. He is the author of Effective Negotiation and Mediation: Applied Theory and Practice Handbook (rev. ed., 2000). He can be reached via his website at www.mediate.com/rbenjamin.

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