For a forthcoming article about law school mediation courses, I developed a list of key values and principles that I think people in our field generally share. They are about the roles of practitioners – including both mediators and attorneys – when working with clients in mediation. Faculty can advocate them in any mediation course and practitioners can apply them in their work. The following list is adapted from the article.
Mediation of cases involving legally-represented parties is an ensemble process including active roles for parties and attorneys who are actors with human agency and understandable concerns. They should not be considered primarily as subjects of mediators’ interventions or difficult people to be pacified.
Attorneys and mediators operate in a complex market system and both play important roles. Attorneys and mediators can and should cooperate as much as appropriate and possible throughout the mediation process.
Clients of mediators and attorneys are the ultimate decision-makers about negotiation and settlement of their cases. It’s often hard to gain clients’ trust, communicate in terms that they can understand, manage their expectations, break bad news, and cope with difficult behaviors. Practitioners should pay attention to why clients sometimes feel and act these ways, and practitioners should use good techniques for dealing with these challenges.
Practitioners should listen well to their clients. This sounds easy but it’s not. Many practitioners are lousy listeners and they often infuriate their clients as a result. Law students struggle with it too, especially because our not-so-hidden curriculum prioritizes arguing.
Practitioners should pay particular attention to clients’ most important interests including a range of intangible interests. These include interests in reducing stress, risk, expense, damage to relationships and reputations, and opportunity costs, among many many others. Practitioners can do this without necessarily using a Getting-to-Yes interests-and-options process.
Practitioners should help clients anticipate possible outcomes if they don’t reach agreement – aka the expected outcome of the BATNA process. But practitioners should recognize that clients may not be most concerned about approximating these outcomes or maximizing their financial interests. Practitioners should listen carefully to understand clients’ actual priorities, not routinely assume that clients are only or primarily interested in the money or predicted court outcomes. We all should avoid perpetuating common misunderstandings about BATNAs.
Practitioners should help parties make the best decisions that they can. This is very hard when people are in the middle of difficult conflicts. Mediation often is nerve-wracking for practitioners. Think how much harder it is for parties. It’s important for attorneys to prepare clients well to make decisions in mediation sessions. Attorneys and mediators should work together before mediation sessions to plan procedures that will help clients make the best possible decisions during mediation sessions.
Many parties can’t afford representation, and attorneys have a professional obligation to provide pro bono services. Practitioners should seriously undertake their pro bono obligations and opportunities. Law school graduates might serve as mediators in free or low-cost mediation programs and/or as attorneys representing parties in mediation. Mediation representation provides the opportunity to prepare parties to be as effective in mediation as possible and to support and advocate for them in the process. This can be a satisfying and efficient way for attorneys to make a difference in people’s lives.
What would you add, delete, or modify to this list?
