Mediation Myth-Buster #1

Posted by Chris Seaton on 19 February 2011 | 3 Comments

Tags: mediator, commercial mediation, lawyer-mediators

Mediation Myth-Buster #1 - Lawyers make the best mediators

May be a mistake, but I thought, why not start this blog series on a controversial note? 

Last year, there was an American TV show tagged as lawyer turned mediator and the PR blurb talked of how the main character, a lawyer called Kate, ‘frustrated with the bureaucracy and injustice she witnesses in legal system, decides to become the ultimate anti-lawyer: a mediator.’

Is a mediator the ‘ultimate anti-lawyer’?  Do lawyers turned mediators become the only show in town?  Some would say so, while others would make the case that both the public and lawyers still need convincing on the merits of mediation.

The lawyers of our land are the custodians of remunerative conflict resolution, and most litigators have a view on mediation.  Of all the spheres of mediation, commercial mediation considers itself as the blue-chip version.  Community mediation may be seen as worthy; family mediation may grab the headlines; workplace mediation is clearly on the up but it is to commercial mediation that the money and the profile go.  Commercial mediators do not describe themselves by any prefix, but simply go by the definitive term of 'mediator'.

I'm not sure whether anyone has done any statistical analysis on the background of British mediators.  But I would guess that well over half the mediators in the country who are paid (thereby excluding volunteer mediators in community mediation services) are lawyers by background.  That's because at present most people who are paying for mediation are doing so in the context of a legal dispute or matrimonial breakdown.

Many mediators argue that lawyer-mediators are the best mediators.  They have a shared language and culture with the litigators that clients first approach to resolve their disputes.  They understand the well-trodden litigious version of dispute resolution.  They are also used to focusing on the critical issues and pursuing these to a solidly conclusive outcome.

But on the downside, they can also remain adversarially-minded even when parties wish to compromise, they can get stuck in positions rather than being interest-based and are far more used to being problem-solvers than facilitators.

And I should know, as I am a recovering lawyer, with 7 years in legal training and practice in my background.

At Peaceworks, we pride ourselves on the variety of what we do.  We hope that gives us some breadth of perspective.  With an appalling lack of humility, I would suggest some of my legal background really helps me – it helps me to write 'smarter' agreements, I can become more directive when the parties are locking down mentally and I am able to help parties keep sight of the real issues.  But if I am honest, I am also aware that the legal Chris can get too focused on detail and become too directive.  These are faults that my non-lawyer colleagues help me with!

So I say, vive la difference – we need lawyer-mediators and non-lawyer mediators.  The question is, will the lawyers trust non-lawyer mediators and invite them to the party?