On Professional Practice: Mediation—Theory and Reality

For over two decades, the American Bar Association has sponsored an annual Mediation Representation Competition. Initially run by the Section on Dispute Resolution and now the Law Student Division, the competition gives law students the opportunity to take on the roles of lawyers and clients in the context of a mediation conducted by a professional mediator who is instructed to be “facilitative.” I serve as a coach for the Mitchell Hamline team, and the competition just wrapped up, so I have been reflecting on lawyer representation in a mediation in theory and in practice.

In the competition, the students (lawyer and client) are judged on: mediation planning and pre-mediation analysis; presenting the case in opening and throughout; advocating client’s interests & outcome of session; coordinating between attorney and client; problem-solving and relationship building with opposing team; generating & selecting creative options; interacting with the mediator; caucusing (which is not required); post-negotiation analyzing; and behaving ethically.

It is clear from the rubric used in the competition that the students are expected to approach the mediation from a problem-solving perspective. They are asked to identify their client’s interests and anticipate the other side’s interests. They are rewarded for problem-solving, building relationships with the “opposing” team, and generating creative options. 

The Section on Dispute Resolution has always supported problem-solving representation. For example, each year, a deserving attorney is selected to receive the Lawyer as Problem Solver Award.

As a legal educator who also mediates regularly, I have been increasingly aware of the disconnect between the talk of the importance of problem-solving and the actual practice of law—especially in the context of representation in mediation. In my experience, the higher the stakes, the less often lawyers want to do the hard work of “problem-solving and relationship-building with [the other side.”  This disconnect led me to explore the official guidance that lawyers receive about mediation representation in the professional rules of conduct for lawyers. Spoiler alert – there isn’t much!

The Model Rules of Professional Conduct for Lawyers begin with a Preamble in which there is a description of the various roles that a lawyer may play. These include advisor, advocate, evaluator, and negotiator. “As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.” Preamble [2]. This strikes me as short of the kind of work the Mediation Representation Competition and the Lawyer as Problem Solver Award suggest. The requirement is for “honesty” while seeking an “advantageous result.” Those of us who are committed to the idea of lawyer as problem-solver know that this advantageous result can only be achieved by considering the big picture—which includes the needs and interests of the other so that whatever resolution that is reached can be effective, complete, and durable—but do all lawyers read it that way? My experience suggests that the answer is no. Most lawyers read this as an affirmation that they are to approach all problems with an adversarial mindset.

It is no surprise that nearly all the rules that follow are in the context of adversarial adjudicative proceedings and relate to the duty lawyers owe to their clients.

Let’s look at a few of the rules which might shed some light on the lawyer’s role as a representative in a mediation. Rule 1.2 (Scope of Representation & Allocation of Authority Between Client and Lawyer). The general rule is “…a lawyer shall abide by a client's decisions concerning the objectives of representation and… shall consult with the client as to the means by which they are to be pursued…. A lawyer shall abide by a client's decision whether to settle a matter.” The rule is tempered by (c) which allow a lawyer to limit the scope of their representation and (d) “a lawyer may not counsel a client to engage … in conduct that the lawyer knows is criminal or fraudulent.”  

In my experience, lawyers often substitute their own thinking around how the mediation process should unfold. Specifically, lawyers often request (or demand) that the parties not meet together in joint session after only a brief opening segment or at all. Further, they treat mediation as a settlement conference rather than the unique opportunity for the parties to talk together.

Sadly, I rarely see lawyers consult with their clients to determine what the client thinks about this decision. While lawyers do routinely abide by their client’s decisions regarding settlement, I wonder whether a client is really in a position to make that determination when all they are hearing are the settlement offers filtered through the mediator’s voice?

I hope that the participants and their lawyers learn new information in a mediation. If this happens, inevitably lawyers must speak with their clients to consider the new information and how this may alter their strategy or offer/demand. I also recognize that the rise in remote mediation as the norm has contributed to the use of caucuses in mediation. When an attorney and client are not physically together, it is challenging for the attorney to fulfil the ethical obligations of Rule 1.2 (Scope of Representation & Allocation of Authority Between Client & Lawyer) without the use of breakout rooms to review what has been learned and how the client wants to proceed. My concern is that once lawyers get into a breakout room with their clients, they want to stay there and not return to a joint session.

The Mediation Representation Competition provides an interesting counter to this trend. The competition can take place in-person or virtually with some of the preliminary rounds handled in each fashion. Under either format, the rules limit the amount of time for caucuses and/or breaks that a team may take during a 90-minute session to a total of 15 minutes per team. The teams are subtly encouraged to make use of a caucus because it is one of the “scoreable” criteria. Still, they are not permitted to stay apart without incurring a penalty deduction in points.

This strikes me as the correct balance. Lawyers should use the caucus to communicate with their clients and explore options with (or without) the mediator. However, this should not become the predominant way the mediation is conducted.

Rule 2.1 (Advisor) states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” I understand this rule to require that the lawyer exercise independent professional judgment and render candid advice, and to permit the lawyer to consider other factors in addition to the law, such as “moral, economic, social and political factors.” Again, this rule falls short of requiring the kind of efforts in which a true problem-solving lawyer would engage. Can we fault lawyers for adhering only to the mandatory requirements?

As a law professor, I frequently am involved in conversations with my colleagues as we debate whether we should teach our students what should be happening in mediation or what is happening. I land squarely on teaching mediation theory and structural underpinnings so that my students will become good consumers of mediation services and good counselors/advisors to their clients on the appropriate use of mediation. I also hope that they will be the guardians of the process going forward and will advocate to support rules and procedures that promote lawyers’ work in problem-solving and relationship building.

Perhaps it is time for the Model Rules to be revised to reflect the reality of law practice, which increasingly takes place outside of the courtroom.