Gini Nelson\’s Engaging Conflicts

March 31, 2006

Those “Other” Conflict Specialists — Attorneys, Attorney-Mediators and Non-Attorney Mediators — No Conflict Here!

Filed under: Attorneys and Mediators - No Conflict Here!,Business — Gini @ 1:38 pm

I'm passionate about Bernard S. Mayer's critique of the dispute resolution field given in his 2004 book, Beyond Neutrality: Confronting the Crisis in Conflict Resolution. If you have read it, you've guessed by now that it inspired this blog. I'm rereading it and will bring it into the blog from time to time, as I find Bernie's points so … engaging.

Among many critically important points, two are especially relevant here. He declared that the emperor has no clothes, i.e., that the field of conflict resolution is in crisis. That has as a consequence what I think is true (I may be mistaken) — that most non-attorney mediators are not wildly successful business people, in the sense of making a lot of money. Hence the "Business" category within the blog (which I promise will be helpful to attorneys, too. Face it, most attorneys learned nothing about having a successful business when they went to law school). I'm passionate about entrepreneurs (I am one) — I want us small business people to thrive.

Bernie, who is not an attorney, also raised to the level of public discussion the private grumblings some non-attorney mediators make about attorneys arriving on the dispute resolution scene. I'm an attorney, so I'll help raise to the level of public discussion the private grumblings some attorneys make about non-attorney mediators. Attorneys, attorney-mediators, non-attorney mediators — we are all here on the field to stay. In terms of business success and survival, it may get bloody. I hope this blog can help us all learn to "play together" better.

I'll share this blog category from time to time with others exploring how we can play together better. David B. River has been a full-time mediator, trainer and researcher since 1995, and is currently completing a Masters Degree in Dispute Resolution with the University of Massachusetts. He is not an attorney. His article, In Pursuit of Justice: Lawyers and Mediators Negotiating Identity, has just been published in Vol. 5 No. 1, Winter 2006 issue, Family Mediation Quarterly. Here's an excerpt (a link for the full article follows at the end):

 

As mediation becomes mainstream, there is a growing conflict between legal professionals, who traditionally resolve disputes, and mediators, who are bringing mediation to conflict areas that were previously handled by attorneys. The growing dispute is evidenced by an increasing number of lawsuits brought against mediators by state bar associations on grounds of “unauthorized practice of law.”

The popular reasons given for the conflict only partially explain its causes. Rubin and Levinger point out that “conflict over one set of issues is often confounded with, or obscured by, conflict over issues at a different level” (1995, pp.15-16) and in the case of mediators and attorneys, the most visible level of discussion is to define what is and isn’t the practice of law and who is entitled to discuss the law with people in conflict. Mediators claim that lawyers bring these lawsuits against mediators in order to protect their business interests and lawyers claim that mediators step into legal territory without legal training or ethics to guide them, leaving people with unjust or otherwise negative outcomes.

A much richer understanding of this struggle for definition is possible through the lens of identity and resource competition. The advent of mediation as a tool addressing conflicts that were previously handled by attorneys has blurred the distinctions of who is capable of addressing conflict, broadened the models for dispute resolution, and called into question the idea that adversarial approaches lead to the best outcomes for people in conflict. The success of mediation, drawing people who might otherwise have hired attorneys, is forcing attorneys to look at the assumptions about who they are, what their work accomplishes, and, in some cases, to transform.

On the other hand, mediators form a new profession with many different ideas, styles, practices and ethical codes. Under threat of lawsuits from the legal profession, mediators keep silent about how they discuss legal issues with clients, what forms best practices, and what distinguishes a cooperative approach to the law rather than a competitive one.

The tendency of identity conflict to escalate and define who is “in,” who is “out,” and therefore who is in an advantaged position with respect to resources hampers the development of both professions and keeps the focus away from the kinds of questions and research that would allow both professions to advance.

Here's the article: http://www.rivercadiz.com/Articles/In_Pursuit_of_Justice.htm.

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4 Comments »

  1. Ginny, thanks for your new blog and the engaging conversational threads you’re offering us! I want to invite you–and others reading this comment–to consider alternative language to “non-attorney” mediators, since that defines us by what we are NOT. Not a very helpful term, I think, perhaps a little like calling women “non-you-know-what-part-of-the-anatomy-owning people.” The dispute resolution profession’s done a poor job of finding useful terms as a substitute, yet I find myself frustrated by being defined this way. Once, I proposed calling us “professional mediators,” and insulted the attorney with whom I was speaking, since he concluded I meant that attorneys who mediate must not be professional. Sigh. Maybe it should just be “mediators” and “attorney-mediators”?

    Comment by Tammy Lenski — July 11, 2006 @ 3:17 pm | Reply

  2. Tammy, good point, of course! I don’t recall wny I hit upon the attorney and non-attorney designations — I think because of the “unauthorized practice of law” issue,one of the areas of stress between … mediators and attorney-mediators.

    Comment by engagingconflicts — July 12, 2006 @ 8:45 pm | Reply

  3. Ginny and Tammy
    I am also offended by the term “non-attorney” and liken it to “non-white” although I like Tammy’s description as well. It is important to me to note when I am defining a group through the eyes of a dominate group or myself as “center of the universe”. I think defining ourselves by the role we are in AT THE TIME helps to develop clarity in interventions and keeps the focus ON “the kinds of questions and research that would allow both professions [ALL] to advance.”

    Conflicts have always been addressed by a variety of people – parents, counselors, wise friends, authority figures, and bar tenders to name a few. Maybe turf issues (like the Unauthorized Practice of Law / The Authorized Practice of Mediation) can be helped with sharing information, our reasoning and intentions, and our associated feelings. What I like about this is that it is consistent with the core values of mediation as I practice it. It also allows everyone to improve their skills and knowledge. I’d like to hear more about how you and others view it.

    Comment by Sue Bronson — July 13, 2006 @ 6:27 am | Reply

  4. Thank you, Sue! You and Tammy raise good points! I’m changing the terms. Gini

    Comment by engagingconflicts — July 18, 2006 @ 11:01 am | Reply


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