I am a non-attorney mediator who has worked with attorneys in mediation for more than 25 years. The relationship between a mediator and attorneys representing parties in mediation is a complex one. It can be very different, depending upon many factors. Some of these factors are:
Did one or both of the attorneys bring me into the mediation?
- Is the mediation voluntary or court-ordered?
- Do the attorneys involved have any familiarity with the mediation process?
- Do the attorneys want the parties to reach an agreement, or are they there just for appearances?
- Do the attorneys respect me in my role (especially considering that I am not an attorney)?
- Do the attorneys really want to participate in a mediation process, or are they looking for a settlement conference?
Can the attorneys give up on “winning it all”?
If one or both of the attorneys have contacted me and asked me to mediate the case, this usually means they have worked with me before (and presumably respect me in my role) and are aware that my basic style is to conduct a facilitated discussion between the two sides to attempt to reach a consensus on the issues involved. This means that the two sides at least begin the mediation in the same room. If the mediation is voluntary, then there has already been at least some thought on both sides that a settlement is preferable to court. This situation is a good one for having a productive mediation.
However, I don’t think I have ever conducted a mediation (with or without attorneys) in which all of these factors are optimal. Therefore, I always plan to organize the mediation session in a way that allows me to be the one in control of the process (not the outcome) and how it is managed. A typical problematic case would be one of the several REDRESS II cases I did during my 18 years or so as an EEO mediator with the U.S. Postal Service. These were all cases which had been through the mediation process once, without an agreement being reached and had moved into the hearing process. Perhaps a year after the initial mediation, some cases were selected by the hearing officers to be ordered back into mediation. All of these cases had attorney involvement on one or both sides. Almost every one of these cases epitomized the worst case scenario for dealing with attorneys.
For all of these cases: I was assigned to the case from a roster of mediators. The case had been ordered back to mediation. Although the Postal Service attorneys were usually familiar with mediation (though not always), the attorneys for the employees often were not. Many times, the case was well on the litigation road, and the attorneys and parties on both sides were emotionally and financially committed to winning their cases. The process of face-to-face mediation was imposed by the Postal Service. In short, most if not all of the answers to the seven questions listed above were unfavorable ones from a mediation perspective.
In my experience, structure is important to attorneys involved in any process. A free-flowing mediation is antithetical to that need. Since I am not the arbiter of the outcome (as a judge or
hearing officer would be), I make it clear that I am in charge of the process (in essence, a substitute authority for a judge). I let the attorneys know that, in court, they serve as counselors and advocates; however, in mediation, their advocacy role is “checked at the door”. There is no “cross examination” of opposing parties, and hyper-aggressiveness is not appropriate. I make it clear that I can terminate the mediation process at any time if the attorneys (or the parties, for that matter) cannot abide by the rules. A written Agreement to Mediate is signed by everyone present, committing all of us to the mediation process.
Back to the Postal Service cases mentioned above: The imposition of process structure worked well for keeping the sides on track and allowing everyone’s needs, ideas, positions, etc. to be expressed. However, the preponderance of unfavorable factors was too great to allow many of these cases to reach agreement. In fact, the overall program settlement rate for these cases was so low that the REDRESS II program was discontinued after about a year. However, my settlement rate, although low, was significantly higher than that overall rate. I attribute that, in part, to my ability to control the structure of the mediation process and help the attorneys involved to be a positive force in mediation.
I enjoy working with attorneys and have enjoyed many productive hours in mediation with them. In many cases, their advice to their clients has been the crucial piece in settlement being reached. However, every mediation situation is unique, and it is always good to have an adaptable plan to help you succeed as a mediator working with attorneys.