Posting my short article, The Important Role of Attorneys in Promoting Parties’ Self-Determination in Mediation, on the NYC-DR listserv prompted several reactions.
This post highlights and elaborates some points in my article.
Why Law School Faculty Should Increase Instruction in Mediation Representation
I’m a retired law professor who mediated and taught mediation for years. The main purpose of my article was to encourage law school faculty who teach mediation to increase their instruction about how attorneys can promote good decision-making by representing clients in mediation. About 90% of law school mediation instruction focuses on the neutral role, with relatively little instruction in mediation representation.
Many faculty want to encourage their graduates to promote self-determination, and they focus on the mediators’ role in doing so. There are significant limits on mediators’ capabilities to do this. Attorneys actually are in a much better position to help clients make good decisions in mediation sessions by carefully preparing them before mediation sessions.
Unfortunately, many attorneys don’t do a good job of preparing their clients for mediation sessions. That’s one reason why faculty should teach students how to do it well. This also would prepare them for the NextGen bar exam and to represent clients after graduation. New graduates are much more likely to represent clients in mediation than to serve as mediators.
How Preparation Promotes Self-Determination
For many parties, mediation sessions are very stressful. They are in the middle of an unresolved conflict, and they don’t know how the process or outcome will turn out. They may experience strong emotions, possibly aggravated by hostile reactions from the other side (who might be represented by a scary attorney). They may not be sure whether the mediator will help them. And they may be forced to respond to the mediator and other side under time pressure. So mediation sessions may be challenging environments for parties to make decisions.
Parties may have an especially hard time making decisions during mediation sessions if they have not prepared carefully before the sessions. Pre-session preparation is critically important as it can help parties empower themselves.
Some mediators can’t or don’t do much to help parties prepare before mediation sessions. My article, How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?, suggests things that courts and mediators can do, and it includes links to lots of resources. Parties represent themselves in many mediations, and that article includes suggestions to help self-represented parties.
Mediators should do whatever they appropriately can to help parties prepare. Even when they do encourage preparation, however, there are significant limits to the assistance they can provide because of their neutral role. Mediators typically do not provide advice that parties need before and during mediation sessions.
Attorneys are particularly well positioned to help their clients prepare for mediation sessions in legal cases. Attorneys can engage clients to make choices about dispute resolution processes (if they have a choice), obtain and exchange relevant information with their counterparts and the mediator, educate clients about the applicable law, provide legal advice, explain how the mediation process would work in their case, help them identify and prioritize their goals, anticipate the counterparts’ perspectives and tactics, consider the likely outcomes if the parties do not reach agreement, and plan possible mediation strategies.
When parties are well prepared before mediation sessions, they can participate as effectively as possible from the start of the sessions. Such parties are in a much better position than when the only efforts to promote self-determination occur when mediators do so during mediation sessions.
Realistically Promoting Self-Determination
Standard I.A of the Model Standards of Conduct for Mediators defines self-determination as follows: “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
Making “free” choices is an admirable ideal. What does it mean in practice?
My article noted that there are many factors that can limit parties’ decision-making freedom, including many they aren’t even aware of. Indeed, mediators generally have limited knowledge about what affects parties’ decisions.
So I suggested how we might practically operationalize this ideal. Mediators and attorneys can help parties become knowledgeable, confident, and assertive, with the goal of making the best possible decisions under their circumstances. I think that this is the best we realistically can do to fulfill the goal of self-determination.
Choosing Our Language
In our field, we use many vague terms that feel good, like self-determination. Unfortunately, many of these terms are opaque, so people can attach many different meanings to them and misunderstand each other.
In my article Oxymorons R Us, I suggested that we should communicate so that people actually do understand what we mean – especially people who are not in our field, like parties.
Some readers like our traditional concepts and want to continue using them. I hope to prompt people to reflect on the concepts they prefer and to consider whether other concepts would be more useful.
