Gini Nelson\’s Engaging Conflicts

August 3, 2006

Just Keep ‘Em Talking, by Guest Rawle Andrews Jr., Esq.

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:14 am

Mediator David B. River and attorney mediator Rawle Andrews Jr., Esq. continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators. This is Part Two of Rawle’s latest post; the first part posted yesterday.

Just as there are subsets to ADR, there also are subsets to Meditation itself. When the parties are predisposed to mediation, good people like David River are available and should be utilized to participate in facilitative mediation. The parties know they have a problem, recognize, in some instances, that their relationships are interdependent and they just want the problem to go away so they can get on with life. In facilitative mediation, the Mediator provides a neutral forum for the parties to discuss their desires and frustrations in the hopes that open lines of communication will produce a “legally enforceable” compromise (e.g., a settlement agreement). If the parties are mature and motivated, this can be a wonderfully successful means to resolve conflict. There also is a safe harbor for mediators in facilitative mediation because legal consequences are not driving the resolution; all participants understand that if we cannot solve the problem today, costly and time-consuming litigation is inevitable.

Unfortunately, we do not live in a perfect world, and sometimes the parties are so entrenched that a little “adult supervision” is required to fashion a binding peace accord. When these latter parties are forced or otherwise come “kicking and screaming” into mediation, it is unlikely that facilitative mediation will be successful because the parties would rather be elsewhere. In these instances, directive mediation can and should be utilized in trying to resolve the dispute. Under directive mediation, the Mediator explores the range and likelihood of possible legal outcomes with the parties in trying to reach a settlement. If the mediator is an attorney or Judge, free and open discussion on legal rights and responsibilities become part of the dialogue. In other words, “I understand, Mr. Williams, that you really want to keep the house, but unfortunately your name is not on the deed, etc.”

As an attorney mediator, I can make such a statement without concern about violating some rule or regulation because I have a license to practice law. Without that “license” to drive the mediation, I would be walking a tight rope constantly in search of boundaries (known and unknown) for what I cannot do or say as a mediator. Question: if the goal is to keep the parties together long enough to get them talking about a resolution, do I really have time to sit at the table and wonder whether I, as Mediator, am coloring outside the lines in my own actions? I humbly submit that the facilitator cannot facilitate if he or she is a part of the problem. For me, three years and a written exam eliminated this movable obstruction from the equation.

Consequently, my bottom line remains unaltered at this point: whether mediators who are not attorneys can effectively serve the needs of adverse parties, when authorized to do so by law, depends largely on the who the parties are and what they are fighting about at the time. The more pronounced the question of fault, the more likely that an attorney-mediator is necessary to legitimize the process.

Best wishes,

Rawle

This concludes Rawle’s post this week. David B. River will respond next week.

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2 Comments »

  1. This has become a weekly get together for me as I read both Rawle’s and David’s responses.

    I find that both have valid points to make and continue to wonder which “John Q. Public” would decide to use. John Q. would be most likely be moved, because of emotion, to threaten to file suit and actually file suit before even attempting any type of alternative resolution. John Q. relies more on emotion in these instances, rather than the actual thought process necessary to make a logical decision.

    As John Q. searches for or contacts his attorney, what would his attorney advise? Would his attorny advise full blown litigation, where he could rack up the fees and allow the emotion to run the course of the case? Or would he advise mediation where fees would be less but the emotion would have been finally removed as the mediation process progressed. This is not to say that emotion wouldn’t be removed in the lawsuit, rather that emotions would be placed in check sooner rather than later.

    Here is an additional question, How do you feel if the Court decided to send certain lawsuits to mandatory mediation for resolution prior to going to trial? Case in point. The District of Columbia, Court of Appeals is trying the “Appellate Pilot Mediation Program”. Understanding that this is in the Court of Appeals, wouldn’t something of this nature be advisable at the trial level as well? In this way, not only does John Q. get satisfaction and an outcome that is agreeable to all parties but it also satisifies attorneys and mediators who get a shot at deciding the outcome.

    Gentlemen, I continue to look forawrd to your comments.

    Best regards,
    Don

    Comment by Don — August 3, 2006 @ 7:00 am | Reply

  2. One last thought……..

    To my mind, there are 2 keys. One is EMOTION and the other is LEGALITY. You can mediated emotion, but you can’t mediate legality. Having said that, you can legally mediate but you can’t litigate emotionally.

    Best regards,
    Don

    Comment by Don — August 3, 2006 @ 8:20 am | Reply


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