Gini Nelson's Engaging Conflicts

Guest Rawle Andrews Jr., Esq. begins today with the first of a series of responses to Guest David B. River’s conversations 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 will start today, continue tomorrow, and conclude on Thursday. Gini, thank you for establishing this online forum to discuss conflict resolution. It is far easier to complain from the sidelines than to attempt positive change through continuous dialogue. Because our Host has been kind of enough to create a Guest Blogger’s page, my self-introduction is limited to noting that I have been a business and commercial litigator for over 15 years. In my practice, I have been fortunate to represent Fortune 500 companies, public bodies, growth firms and individuals in litigation, Bench & Jury trials, and all phases of Alternative Dispute Resolution (“ADR”).

My ADR experience includes service as a mediator, arbitrator, or advocate in commercial and employment disputes. In most instances, the participants had counsel and the mediator was an attorney or judge. More recently, however, I have been involved in disputes when the parties believed a “subject matter expert/industry veteran” was more important to the end result than the mediator’s pedigree (e.g., concerning executive employment/non-compete matters). There certainly are parallels in the Domestic Relations arena when, for example, divorce is a given but the asset allocation process is bogged down, or the fact of custody is unquestioned but visitation has to be sorted out. I am not certain, however, that these finite circumstances can be rolled out effectively across the greater legal spectrum.

Bottom line: whether or to what extent mediators who are not attorneys can effectively serve the needs and interests of adverse parties and the ADR system as a whole, when authorized to do so by law, depends largely on 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 validate the process. For ease of reference, my comments to Mr. River’s opening remarks are categorized as follows: (1) The Polar Extremes of Law and Justice; (2) Mediator Training and Ethics must be conjoined; and (3) The Future of Mediation.

I. The Polar Extremes of Law and Justice

Although the psychic aim of dispute resolution is “Justice” for all, there is no real correlation between law and justice in our common law system of jurisprudence. The Law represents an authoritative source of limitations on conduct; not expansive rights (hence the terms, loophole or legal technicality). There are numerous situations when legal niceties trump the morally correct result. One seemingly harsh example is the Statute of Frauds. Although this “Get it in writing” doctrine is well established in contract law, a Court of Justice in Europe or Latin America presumably could find for an alleged contract victim who did not reasonably rely on the alleged wrongdoer’s conduct. While appealing at some level, legal decisions based on emotion rarely serve the greater good because trust in the system is eroded, and there is no way to establish workable precedents for resolving future disputes.

Ultimately, who is “authorized” to resolve disputes is governed by state or federal law. When permitted by law, I believe mediators who are not attorneys can serve the interests of adverse parties in ADR when: (a) the parties are predisposed to mediation (i.e., no real question of fault); and (b) facilitative mediation can be utilized to guide the parties toward a settlement they create. On the other hand, when the parties come into mediation “kicking and screaming”, the parties and the ADR system are better served by neutrals with formal legal training and experience so that directive mediation can be utilized in trying to resolve the dispute (i.e., the mediator explores the range and likelihood of possible legal outcomes with the parties in trying reach an amicable solution).

Best wishes,

Rawle

Rawle’s post will continue tomorrow with “(2) Mediator Training and Ethics must be conjoined.”