Gini Nelson\’s Engaging Conflicts

July 11, 2006

Guest David B. River: What is the correlation of law to justice? Who is “authorized” to resolve disputes?

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 8:57 am

Guest David B. River begins today with the first of 4 conversations about ethics and professional development in mediation.

First of all, I’d like to thank Gini for developing this blog and generating conversation about the future of the field! I’m looking forward to contributing to the blog and to the conversation it generates.

A little bit about me (which sets the framework for future articles): I have been a full-time, non-attorney mediator for the past 11 years, first in school and community mediation at the non-profit New Mexico Center for Dispute Resolution and then as a private mediator, focusing primarily on divorce. Six years ago, when I moved out of the non-profit realm into Diane Neumann & Associates in Boston, I began to tackle how I might “professionalize” myself as a divorce mediator. The standard answer was to obtain a degree in either law or psychology/therapy. To explore the prospect of a law degree, I took the LSAT and interviewed attorneys and law students about what I might gain. What I found was very little in regards to my interest in conflict resolution. The legal system, after all, is based on the ability to build an argument. I respect that, but had spent my schooling, training and career thus far getting my brain beyond positional argumentation. In regards to the substantive legal issues of divorce, I was surprised to find out that most attorneys learn the law “on the court” and not in law school. In other words, it appeared that a law degree would be three years training my brain to think a particular way that I didn’t want to think.

So, I took the second route and entered an MSW program at Boston College. The information on human development and behavior was applicable, but the professional conversations had nothing to do with mediation – probably less than law school. After one semester (and with a 4.0 GPA mind you!), I left that program. Against all advice, I entered a Dispute Resolution Master’s program at UMass Boston. The caution: I would spend 2 years obtaining an unknown degree that would do little to increase my professional stature. However, every class and conversation met my interests – dispute resolution theory and ethics, the dynamics of public policy disputes and intervention, strategies for reconciliation after war – and I put my time and energy there.

In my private practice, without a J.D., I constantly walk the line of “unauthorized practice of law” and am aware that the mediation profession lacks solid ground. My professional unease gives rise to certain questions – some global and some specific:

  • What is the correlation of law to justice? Who is “authorized” to resolve disputes?
  • How does a lack of solid professional ground for mediators affect mediation ethics?
  • How can the mediation field develop authority without being co-opted by established professions?
  • Is a new form of legal training needed for mediators?
  • How will the art and distinction of mediation be nurtured and grown without losing integrity?

Over the next few months, I’ll be posting entries to this blog in pursuit of these questions, and I look forward to the conversation that I hope it generates.

Best wishes,

David

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2 Comments »

  1. Dear David,
    Thanks to you and Gini for starting and sharing this blog. Knowing myself, it’s unlikely I will subscribe to and follow these articles even though they sound interesting, relevant and even important. The problem, of course, is time! But, we’ll see.
    I am a lawyer and court employed mediator of 25 years. There are two thoughts I would share in response to your introductory remarks. First is that I know many excellent mediators who are not lawyers. I know many lawyers who are not excellent mediators. It’s true that lawyers are trained and honed in adversarial skills, and so often have trouble fitting themselves to the role of supportive, neutral facilitator. It’s also true, I think, that when negotiating or mediating a case in a litigation context, as I and my team of mediators do every day, being a lawyer is more often helpful than not.
    Mediation contexts vary widely now. These variations invite different mediation structures, styles, and skills. These differences make difficult the standardization of qualifications sought by those who would use qualifications and certification to professionalize the field. Until we can show that specific qualifications truly do produce superior mediation, I’m afraid I must hold, quite uncomfortably I admit, with those who resist imposing them.
    My last comment goes to the relationship between law and justice and mediation. I have spent time now in four less developed countries assisting with creation of mediation programs within or adjoining court systems. It seems profoundly true that mediation can only be an alternative to a formal legal system, it cannot be a substitute for one. Self-serving people will choose their self-serving BATNAs and WATNAs; if people cannot get justice outside the mediation process, it’s unlikely they’ll be able to get it from mediation. I wish it were otherwise.

    Good luck with the blog.
    Bob Rack
    Chief Circuit Mediator
    U.S. Court of Appeals for the Sixth Circuit
    Cincinnati, Ohio

    Comment by Robert Rack, Jr. — July 11, 2006 @ 12:50 pm | Reply

  2. i need that coffee!

    Comment by shelly — January 22, 2007 @ 1:31 pm | Reply


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