Gini Nelson's Engaging Conflicts

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that Multidisciplinary Practice (“MDP”), where both lawyers and non-lawyers serve as neutrals, has perpetuated this outdated stereotype about mediation.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.”

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.”

Rawle Andrews Jr. of Andrews & Bowe, Washington, DC, was honored as the 2006 Pro Bono Lawyer of the Year by the District of Columbia Bar Association. In addition to his law practice, he is an American Arbitration Association Neutral. Rawle will guest blog about ethical issues alternating with Guest Blogger David B. River, with bi-weekly posts over a two-month (or so) period, beginning on July 17th, 2006. Please read more about him and his practice in his Guest Blogger page in the right-hand column of the blog!Looking forward to your posts, Rawle!

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

David is on the Board of the New Mexico Mediation Association, and is a full-time mediator in Santa Fe, New Mexico while finishing up a Masters Degree in Dispute Resolution with the University of Massachusetts. He’ll guest blog about ethical issues mediators face with bi-weekly posts over a two-month period, beginning next week. Earlier, I posted a link to David’s article, In Pursuit of Justice: Lawyers and Mediators Negotiating Identity (see the March 31, 2006 post titled “Those ‘Other’ Conflict Specialists ….”). The article will be published in the Vol. 5 No. 1, Winter 2006 issue, Family Mediation Quarterly — but here’s an updated link to the full article on his website: http://www.rivercadiz.com/Articles/FamilyMediationQuarterly-InPursuitofJustice.pdfLooking forward to your posts, David!

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.