Mediation, obviously, is not “new.” Lawyers have been mediating cases for many years and courts in nearly every jurisdiction have mediation programs. Yet, where “mediation advocacy” is concerned, practicing lawyers encounter new and ever-increasing challenges as a result of the extensive attention that has been devoted to mediation theory and practice. Those challenges, in a nutshell, have arisen because the study of mediation in our law schools has evolved to a point where: (1) increasingly young lawyers are entering the profession with a “dispute resolution” vocabulary that is not necessarily shared or universally accepted among established, veteran practitioners; and (2) simultaneously the ethics and meaning of “advocacy” are evolving and changing to accommodate non-adversarial, collaborative processes of dispute resolution.
As a case in point, consider the relatively recent emergence of the “Representation In Mediation Competition” for law students sponsored by the American Bar Association Section of Dispute Resolution and various law schools throughout the country. According to the rules and instructions for this competition, as of August 2011): “The judging criteria are designed to reward those participants who use an effective combination of advocacy skills and a problem-solving approachin the mediation.” (Emphasis added.)
Before the competition begins, the students are instructed that there will be a “facilitative” mediator and they are expected to utilize the “problem-solving” approach which is defined as: “an approach in which negotiators learn about each other’s interests and BATNAs (Best Alternative To A Negotiated Agreement), brainstorm options, and select and shape a solution that meets their interests and, where, appropriate, objective standards.”
This “dispute resolution” lexicon including terms like “facilitative mediation,” the “problem-solving approach,” and “BATNAs” did not exist as universally accepted “terms of art” when most of today’s practicing lawyers attended law school. Indeed, there is less consensus regarding the precise meaning of these and other such terms than these rules would suggest. Thus, today’s law graduates and veteran practitioners now face the odd situation where many members of the same profession may not necessarily share a common vocabulary by which mediation is defined and the function of lawyers in mediation is prescribed.
In terms of “mediation advocacy,” another perhaps more remarkable aspect of this problem is reflected in the assumptions underlying the “best” practices of lawyers representing clients in Mediation. According to the competition rules, the student participants (and the competition Judges) are instructed: “Where there are apparently conflicting interests (distributive conflicts), teams should first try problem-solving methods before resorting to positional strategies. In contrast, the classically positional negotiator generally starts with firm, extreme and opposite positions and then makes calibrated concessions until both sides are close enough to split the difference.”
Aside from the fact noted above that many veteran lawyers may not necessarily share a common understanding of a term like “distributive conflict” (which is nevertheless presented to these law students as yet another seemingly well-established and universally-accepted term of art) this “rule” of how “best” to represent clients in Mediation exemplifies a subtle and significant shift in the assumptions underlying the norms and standards governing the behavior and performance of practicing lawyers.
As this rule suggests, for any number of reasons (probably associated with well-established norms underlying the adversarial system) lawyers tend to approach legal conflicts “with firm, extreme and opposite positions” and many negotiate by making “calibrated concessions until both sides are close enough to split the difference.” Yet, these law students are expected to “first try problem-solving methods before resorting to positional strategies.” Importantly, if the student competitor engages in the kind of negotiation that most lawyers typically utilize, that student will receive a lower score than the one who first tries “problem-solving methods.” In other words, if it is true that most veteran practitioners engage in negotiation strategies that originate with “firm, extreme and opposite” positions, then most of us would do very poorly in this law school competition.
These new lawyers are not only entering the profession with a somewhat new “dispute resolution” vocabulary, they are learning to practice law according to significantly different ethical and behavioral norms and standards. Such norms and standards are informed less by the adversarial mindset than by the rapidly emerging culture of facilitative problem-solving.
This competition, therefore, is merely one example of a much larger phenomenon that has evolved over the past 20 to 30 years within the practice of law. In an aptly titled book: “The New Lawyer: How Settlement Is Transforming The Practice of Law,” Professor Judith MacFarlane has carefully and intelligently explored these developments. As Professor MacFarlane has observed, these remarkable developments reflect “new” norms, attitudes and practices that have evolved as a natural byproduct of the proliferation of consensual “settlement” processes like Mediation.
While practicing lawyers have continued to “settle” cases the “old fashioned way,” our law schools have simultaneously promoted a thorough exploration of Mediation resulting in significant evolutionary changes and developments in “the practice of law.” This leads to certain inevitable questions such as: How many practicing lawyers are thoroughly familiar with this new dispute resolution lexicon? And how many will be inclined to alter their established practices from the traditional adversarial mind-set to a more facilitative “problem-solving” approach?
Maybe this is an opportunity for new lawyers to mentor the veterans for a change. •