New Article on Mediation Representation – and an Invitation for a Conversation at the ABA DR Conference

2 Comments

Many of us teach mediation courses focused on preparing students to serve as neutrals.

Our courses don’t focus much on preparing them to represent clients in mediation, a role they are far more likely to perform soon after graduation.

I just posted my latest Theory Meets Practice column for CPR’s Alternatives magazine, The Art of Mediation Representation: Helping Clients Make Good Decisions.

It outlines the theory and practice of mediation representation, drawing on Real Practice Systems checklists, recent research, and techniques of practical lawyering.  It emphasizes how attorneys can help clients make informed, confident decisions before, during, and after mediation sessions.

If you will teach mediation next year, I hope this article provides some food for thought.

We’ll be discussing these issues in a session at the ABA Section of Dispute Resolution Conference in Chicago:

  • What Do Law Students Really Need to Learn About Mediation?
  • Saturday, April 26, Noon – 1:00 p.m.

The panel will feature Rob Rubinson (University of Baltimore) and Erin Gleason Alvarez (Pace University), who teach clinical courses in mediation representation, as well as myself.  We’ll share ideas, challenges, and examples from our teaching, and we’re building in time to hear your perspectives and experiences.

We hope to see you there.

2 thoughts on “New Article on Mediation Representation – and an Invitation for a Conversation at the ABA DR Conference”

  1. Hi John, thank you for the tremendous resources you consistently make available. I particularly enjoyed your latest AI musings

    I was however concerned to read in your latest article “The Art of Mediation Representation: Helping Clients Make Good Decisions”, that lawyers are the primary point of contact with the mediator.

    You say that lawyers in mediation;

    “…. counsel clients and also represent them in communicating with the mediators and the other side. Communications to clients generally go through their attorneys, who explain to clients the counterparts’ and mediators’ perspectives and help clients develop their strategies. Attorneys also communicate with counterparts and mediators on behalf of their clients.”

    Many of the best commercial mediators strive to keep clients front and centre to the process and resist attempts by the lawyers to do all the talking, both with the mediator and across the table. And while mediators might have valuable conversations with lawyers, a good mediator makes a connection with principals and encourages them to directly communicate with each other, in all but extreme circumstances.

    1. Hi Geoff,

      Thanks for your kind words and for highlighting this important point.

      I agree that many mediators, especially in commercial cases, make a concerted effort to keep parties front and center. When parties are sophisticated, articulate, and assertive, mediators often engage directly with them and may encourage direct communication across the table.

      I also believe that in many cases – especially those involving complex legal issues or parties who are less experienced, less confident, or comfortable in the process – mediators may focus more on the attorneys. Some lawyers explicitly instruct their clients to let them do the talking. In some settings, attorneys are more active in both sending and receiving messages with the mediator.

      I suspect the balance varies depending on a range of factors including the nature of the dispute, the preferences and capacities of the individuals involved, the mediator’s style, and the surrounding practice culture.

      Thanks again for raising this valuable perspective. It’s a good reminder that mediation dynamics are highly contextual.

      Best,
      John

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