Gini Nelson\’s Engaging Conflicts

July 19, 2006

Guest Rawle Andrews Jr, Esq.: Mediation Training & Ethics Must Be Conjoined

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:34 am

Guest Rawle Andrews Jr., Esq. continues with his response to Guest David B. River’s first post about ethics and professional development in mediation. David is not an attorney and his questions for us include the respective roles of mediators and attorneys, and where the risks of unauthorized practice of law are for mediators who are not attorneys. Rawle is an attorney, who also mediates. His first post was yesterday (“The Polar Extremes of Law and Justice“), it continues today, and concludes tomorrow.

II. Mediation Training & Ethics must be conjoined.

For years, ADR has suffered from a “split the baby” perception that neutrals will find a way to compensate alleged victims regardless of fault. With limited exceptions (traditionally in certain Southern states), courts of law suffer from no such backlash based on the large number of lawsuits filed every year. Some argue that Multidisciplinary Practice (“MDP”), where both lawyers and non-lawyers serve as neutrals, has perpetuated this outdated stereotype about mediation.

It appears, however, that the Ethical bypass occurs because most mediators are not active Judges. As such, advocates sometimes feel free to engage in tactics for leverage in mediation that would be unthinkable before a Judge. Until recently, civil litigators saw similar patterns in deposition practice where speaking objections could exceed the length of a deponent’s testimony. The courts responded by imposing harsh sanctions. Now, only the most extreme instances of discovery abuse are regularly reported. Of course, the foregoing example illustrates the problem because mediators cannot “crack the whip” to reign in bad behavior. Even if laws were adopted to provide such protections, however, mediators still would have to ask the courts to enforce these laws, thereby heightening the sense of “mediator inferiority” (e.g., increased litigation from a source aimed at terminating lawsuits). Similarly, a flood of Bar complaints by mediators who are not attorneys inevitably will get bogged down in unauthorized practice of law (“UPL”) questions, thus further crippling the ADR system as a whole because this would signal the beginning of the end for mediators who are not attorneys in most jurisdictions.

It is not hard to fathom some alternative degree plans that might serve the varied educational needs of mediators who are not attorneys, but why resort to such modalities if law schools simply can add a course(s) to an already established degree plan, or attorney mediators can audit such non-traditional, social science courses on their own time. Because there are no accredited Bachelor’s degrees in law at the undergraduate level, most lawyers majored in some other discipline before attending law school. In my case, it just happened to be a BA in Psychology. I do not believe, however, that my social science degree is no substitute for formal legal training when a client’s rights are at stake.

A law degree, for all its warts, involves developing specific analytical tools to forge new relationships and resolve disputes. While constructing an argument certainly is fundamental to an advocacy-oriented law practice, that is by no means the end all; be all of the discipline. “Learning to think like a lawyer” enables the practitioner to sift through a maze of facts and emotions like the search for the common denominator in mathematics. For instance, upon learning of a slip & fall case, all lawyers, regardless of specialty, instantly think “Torts”, and then quickly work their way through well-established, common law Negligence principles. Thereafter, as lawyers, we focus on how the accident occurred to apportion damages, if any, rather than whether the alleged victim will ever walk again and/or the alleged wrongdoer’s ability to pay. This might sound harsh, but that is the genius of our legal system. Consequently, if the trip to mediation is by force or otherwise bogged down by apportionment of fault, the mediator’s pedigree is relevant because the parties likely will have lawyers at the table. An effective mediator must be well armed to deal with this reality to avoid grappling with, among other things, the very ethical lapses that threaten the integrity of the system.

Best wishes,
Rawle

Rawle’s post will conclude tomorrow with “(3) The Future of Mediation.”

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2 Comments »

  1. Would it not also be advisable for a non-attorney mediators to audit or take several law classes to obtain some of the legal knowledge necessary to accomplish the same task? Although, I’d suspect that by non-attorney mediators using what they may have learned in those classes, it would be a definite use of the unauthorized practice of law, which as you stated would be the beginning of the end for non-attorney mediators.

    So, what would be the answer? Should all mediators have a law degree and at some point have practiced law or been a judge in order to be able to mediate a dispute? Doesn’t one’s experience, mediating several types of disputes, count for anything when mediating a dispute? Granted, some disputes cannot be resolved without legal intervention, but for those that are simple in nature, isn’t it acceptable to have an unbiased third person, a non-lawyer, decided the outcome?

    Comment by Don — July 20, 2006 @ 8:47 am | Reply

  2. Nice site!

    Comment by Tmobile — January 11, 2007 @ 10:47 pm | Reply


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