As we know, American attorneys regularly represent clients in mediation. There’s a ton of theory about mediation generally but much less about mediation representation.
I just posted an article, Theory and Practice of Mediation Representation, which presents a theoretical analysis based on Real Practice System Theory. The following graphic provides an overview, which the article elaborates.
Most writing and instruction about mediation focuses on mediators’ actions during mediation sessions, depicted in the green cell in the table. In practice, the mediation process often involves all the cells in the table.
Attorneys’ case evaluation and client counseling, shaded in blue, is particularly important to improve the process and for parties to feel empowered.
A study by Roselle Wissler found that increased preparation of clients by their attorneys before mediation sessions had many great benefits. Parties who had more preparation (compared with less-prepared parties) felt they had more chance to express their views and that the process was more fair. More-prepared parties felt that the mediator was more impartial, understood their views better, and treated them with more respect. More-prepared parties also felt less pressured to settle – but they were more likely to settle and think that the settlement was fair.
What’s not to like?
My article analyzes eight books related to mediation representation. These flesh out the theory with various perspectives about practice.
The article offers suggestions for faculty who teach mediation, including covering both neutral and representation in your courses as well as using one of these books. These books cover all the topics in most mediation texts – and more. Like many mediation texts, these books discuss the following subjects:
- theory and practice
- stages of mediation
- tactics in mediation sessions (in substantial detail)
- psychological issues
- ethical issues
The books also discuss the following topics, which aren’t discussed much if at all in most mediation books:
- evaluating cases
- counseling clients
- initiating mediation
- advocacy planning
- preparation for mediation sessions
I also posted Real Practice System Menu of Checklists for Attorneys in Mediation, which complements the menu of checklists for mediators. There is substantial overlap between the two sets of checklists, with some significant differences. You and your students might be interested to compare the two sets of checklists and use them in simulations.
Take a look.
