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Thursday, 12 April 2012 19:12

Evaluating Advice About Mediation

Perhaps one of the aspects of mediation that makes it so effective is its diversity of forms. Mediation is not pursued just by lawyers or just by therapists, for example, but by both, and also by a wide variety of others with different professional backgrounds. The mediation field is fertile with experimentation and new sources of inspiration. Over the past four decades, there has been a tremendous amount of energy devoted to advancing new mediation techniques. As a result of all this energy, a growing number of people have found more empowering, more economical, and more durable resolutions to their disputes than they would have otherwise found in an adversarial process such as litigation.

However, the diversity in the mediation field is also cause for caution and an indication that there may be significant disagreements about what mediation should and should not be. These disagreements can lead to confusion by people wondering whether mediation is right for them. For people in such circumstances, it is useful to take time to consider a number of people’s perspectives on mediation in order to gain awareness of the variety of opinions about mediation and the various experiences informing those opinions.

For example, in a recent issue of Family Law News published by the Family Law Section of the California State Bar, Family Law attorney Dina Haddad observed:

…there is no requirement that family law attorneys have any ADR [Alternative Dispute Resolution] training. In fact, family law specialists, certified by the California State Bar, are not required to have any educational hours or training in ADR.” (Issue 1, 2012, p. 32.)

One can reasonably question whether this lack of ADR training requirement creates a bias against mediation and it’s many potential benefits even among certified specialists in family law who have not had the opportunity to study its theories and techniques. This is an important question to consider when turning to one’s attorney for advice about mediation. One helpful strategy in evaluating an attorney’s recommendation concerning mediation is simply to ask them if they have had any mediation or other alternative dispute resolution training. This will help you weigh their opinion and invite them to share more with you their specific experience studying mediation’s various benefits.

Another potential bias that can further influence the opinion about mediation of an attorney who has not been trained in mediation is a bias toward the law as the fundamental standard that should be applied to determine the outcome of a dispute.

In litigation, the law is the standard that is applied by the court and it exerts a tremendous influence over settlement negotiations. In mediation, however, this is not the case. As pioneering family law mediator Gary J. Friedman writes in his book, A Guide To Divorce Mediation:

In sum, the law can have as much or as little power in mediation as you want to give it. If you understand this, the law becomes simply one factor among others that are helpful in determining how you will make your decisions.” (p. 50.)

As Friedman explains:

The trick for the mediator is to find a way to bring the law into the process without intimidating the parties into giving up their personal sense of how to resolve the dispute.” (p. 85.)

It is possible that a lawyer who has not had the opportunity to study mediation may not know how to uncover, test and apply the parties’ personal sense of fairness and deeper needs in resolving their dispute. Under such circumstances, encouraging litigation based on the likely outcome under the law in court may steer parties away from a mediated resolution that better suits the parties’ long term interests. In talking with your attorney about mediation, again, one can gain clarity on this issue simply by asking him or her to discuss with you other standards than the law that might be applied to resolving your dispute, such as your personal sense of fairness. Your attorney’s response will give you perspective that will help you evaluate his advice.

Friedman writes, "In deciding on a mediator, by far the most important criterion is whether or not you both feel the candidate can understand you and your issues." (p. 64.) In deciding whether or not to mediate in the first place, it is also important to determine whether the attorney you consult with for advice also understand you and your issues, including whether you seek a resolution based on other factors such as a personal sense of fairness, in addition to the relevant legal standards.