While it is true that lawyers are eminently trained in the art of negotiating by virtue of the rigors of their profession, arguably some have suggested that these skill sets and the competence achieved provide them with a sound basis to act as mediators.
In a recent article in mediation.com the Indian Division I had the pleasure of reading such an article. Its focus was on the rigorous training that lawyers were subjected to. For the author, the training suggested that lawyers had the makings of ideal candidates as mediators. Initially, I was tempted to let sleeping dogs lie and not deal with some of the rhetoric proposed. Having spent a considerable amount of time ruminating on this postulate, I feel it's imperative that I debunk the proposition. Some of the concerns that have acted as barriers to me to accepting the foremost premise include the different approaches utilized by lawyers to achieve their goal when compared with the ultimate aim of a mediator. This article seeks to assess and evaluate 5 different constraints that may pose barriers to this transition.
No one can deny that the training in law is rigorous, getting into a law program in most North American universities requires an undergraduate degree. Even prior to being accepted many law schools require that their candidates have good scores on the LSAT exams with particularly good grades given that there are so many applicants for so few spots. Choosing a career as a student at law is not a decision made in the heat of the moment but rather one that has been arrived at after a considerable amount of thought. Hence in this context, the consideration is that the student of law would have had some informal grounding in the general subject area. This knowledge would then have been heightened by the intense amount of time they would have had to spend preparing for the LSAT, such that a candidate accepted to law school has achieved a significant milestone. For many institutions, Law school can be completed in approximately three years focused on a variety of courses including contract, family, criminal, estate, constitutional law amongst a plethora of the other topics required to complete the program. Mastering these topics requires an intensive amount of study, supported by relevant case law, decisions, and orders from Masters and Judges. All of which revolve around conditions that are preset and an understanding that there are rules that apply that govern not just the behavior but the outcomes without allowing for the creativity and opportunity to define an individually tailored solution.
The rights of the parties are usually based on the position that the plaintiff or the defense has taken. These views are reinforced by case law which demonstrates how the learned judge ruled in a specific but comparable case. From day one and course one the student is inundated with the concept of win or lose, being the aims and objectives of law. On completion of their training, this learning is further reinforced during articling which requires them to not just provide adequate representation but also to win, irrespective of how unreasonable a position their clients have taken. Consequently, the approach that becomes most familiar for a lawyer and the way they approach matters is one dictated by the law which must be followed within the context of how legal premises apply.
Contrasting markedly with this approach is the method used to train mediators, irrespective of their orientation be it psychology, social work, education, or communications, the focus instead of being on legal rights is to create a collaborative framework in which the parties can achieve resolution. One that is not promised on right or wrong but rather has its aim to create and or achieve a resolution that is acceptable to both parties. This resolution rather than being framed in law is open-ended. This allows for the possibility of input from all involved such that any agreement resulting will encompass the needs of the parties maximally. Hence as opposed to utilizing a spectrum that forms a continuum of right through to wrong as is utilized in law, in mediation the aim is to co-create a solution. This framework removes the solution from the spectrum of right and wrong the fundamental premise of the lawyer’s domain. To achieve this objective the parties need to explore different options possible to find the best fit that is most agreeable to all. These premises clearly suggest that the process requires give and take and potential compromise on all sides. This construct represents the significant difference between the legal process and that undertaken in mediation. For the lawyer, it often poses problems, especially since it requires a substantive change in their thinking to extinguish the old modus operandi of right and wrong. This demonstrates the lawyer’s need to achieve an understanding of the new operational paradigm. Counsel would need to structurally retrain their cognitive maps such that they no longer rely on the learned premises that had been vigorously inculcated in their training. Sufficiently so that the old heuristics used were either clearly recognized such that they could choose to not utilize them or alternatively they became extinguished so that they did not unconsciously impact attempts to mediate. It is my opinion that this mental change cannot be achieved without significant retraining. Given that most lawyers do not undertake any formal relearning process to achieve this end, in my opinion, it becomes difficult for a lawyer to follow the road less traveled as utilized by a seasoned mediator and as a result when mediation is conducted by a lawyer it is done so with lenses that are relegated to win-lose scenarios which change the fundamental constructs of mediation.
In addition to this if we consider that lawyering is premised in law and usually dependent on specific rules of procedure be it civil law, estate law or family law, all of which are codified in their operational principles. These positions can be and are supported by case law, precedent, and rulings over the years, and therefore in itself, the thinking that attends this approach is derived not only from the law but also has its home in the enshrinement of rights. The focus is narrow and views any matter through these lenses. In contrast to this approach, the mediator often tries to cleave equity, this is obtained by focusing on the needs of both parties as opposed to dogmatically sticking to the right or wrong paradigm. To obtain this solution the mediator must use an approach that goes outside of the box, this contrasts markedly with law. Techniques such as brainstorming that may offer potential solutions are not carved or codified in law and in fact maybe in some instances frowned upon or violate some of the principles of law. This difference clearly demonstrates one of the major challenges that lawyers face when practicing mediation.
Mediators have many tools in their toolbox when it comes to the appropriate approach that should be used to achieve resolution, be it transformative, collaborative, narrative, or evaluative. These are just some of the many approaches and processes that a mediator can choose to utilize to enact their process aimed at resolution. The choice of approach is usually dictated by the nature of the matter before the mediator. An example of this is in considering a dispute if there is a need for an ongoing relationship between the parties the mediator after the resolution, may well choose a transformative or a facilitative format. In contrast to this choice when conducting matters in which there will be no continuing or ongoing relationship between the parties after the resolution has occurred the mediator may well elect to utilize an evaluative or even in some cases a narrative approach as the appropriate choice. This flexibility of process and ability to adapt as needed differs markedly from the path and choices available to the lawyer since they can only approach any situation from the spectrum of right to wrong and with the framework offered by case law and precedents. This difference becomes more apparent when we consider the legal framework that does not allow for input from the participants with respect to their needs wants and desires, and that the framework that does not consider a cocreated solution as a potential option.
Finally, it must be remembered that the fundamental operating principle that a lawyer utilizes is to win or lose. Cases are evaluated along the lines of the likelihood of the lawyer winning a decision in court based on the legal arguments and supported by the current presidents that exist and case law decisions. In Contrast to this, the fundamental operational premise utilized by a mediator is predicated on the win-win construct. Clearly, there is a marked difference between the two different approaches. On one hand, one party with their legal representative namely, the lawyer is looking for a winner and loser as their outcome whereas in contrast to this the mediator is looking for a win-win solution. Whereas the lawyer seeks to minimize the options by finding a right or wrong the mediator tries to expand the pie and remove the concept of right and wrong, opting instead for a solution that encompasses the needs of all the parties maximally. Clearly, these two constructs are incompatible, and therefore unless the lawyer learns to change their current operating premise, she or he is unlikely to make a good mediator. That is not to say that the lawyer cannot also do not have the potential to be good mediators but rather they need to recognize that come to the table with handicaps that must be addressed. Further, they need to address the fact that they are lacking in a significant amount of training which can only be had by returning to school to learn the fundamentals of mediation while simultaneously unlearning their functional principles and practice of law prior to attempting mediate.