Thoughts About Non-Attorney Mediators
Article Date: Saturday, June 04, 2011
Written By: Steven A. Savia
About six months ago, one of our colleagues referred someone to me who was interested in becoming a mediator. This person was referred to me because he is not an attorney and our colleague knew that I too am not an attorney. During our conversation, he asked what my most important advice was. I said, "Don't quit your day job." More about the comment later.
This article will probably offend some, really irritate some, and ring true for others. My disclaimer is that I mean no offense to anyone and my objective is to extend the discussion about the "profession" of mediation.
Exactly two years ago, my friend and colleague George Doyle wrote an article for this same newsletter expressing that he had been "closed-minded to speakers who are not lawyer/mediators. I have been skeptical of those who say I, as a mediator, can read people's body language, that there are so many non-verbal cues I am missing." George and I discussed this over dinner at that year's CLE and I believed then, as I do now, that the real point is that there are good mediators and not so good mediators, and frankly, in which camp one finds oneself isn't related to whether one is an attorney.
I have observed some excellent mediations by attorney mediators. I have also observed some extremely poor mediations conducted by attorney mediators. OK, you might say, what's the basis for your judgment, Mr. Non-attorney? Good question.
While I am not an attorney, I have spent a substantial portion of my career studying the law, working with the law, and working with attorneys. I won't go into my academic credentials but they have included formal, self-study, and continuing education.
The issue before us isn't really about the law. It's about alternatives to the legal resolution of disputes. Our Section CLE a couple of years ago was entitled "Beyond Settling Cases." Then Section Chair Ken Carlson was clear on his vision that if we are to be effective in settling disputes, we have to look beyond just shuttling between parties with dollar amounts. We have to go beyond the statistics of cases that are settled before trial, particularly those that go through the Superior Court Mediation Program or the Workers Compensation Mediation Program.
Topics for that CLE included resolving disputes prior to the filing of litigation and the question of whether mediation is a profession. There is a whole population of disputes in our State that can be addressed before they ever involve attorneys. During my more than 30-year career as a professional management consultant, I have been involved in many business sector and public sector inter- and intra-organizational disputes. These have included interpersonal human resource issues, employer-employee issues, vendor-purchaser issues, contractual commitment issues, homeowner association, and neighbor-to-neighbor issues.
Pretty much any conflict that can evolve into a legal argument can be a candidate for alternative dispute resolution before litigation is filed and many of the trained professionals who successfully navigate these conflicts are not attorneys. Geetha Ravindra, University of Richmond School of Law, noted during her 2010 Dispute Resolution Section CLE session that in Virginia the majority of mediators in the Virginia System are not attorneys, the opposite of North Carolina. Some of the professions from which these non-attorney mediators come include: Certified Divorce Planner, Certified Financial Planner, Certified Public Accountant Dentist, Educator, Pastor/Minister, Licensed Professional Counselor, Licensed Clinical Social Worker, Licensed Marriage & Family Therapist, Licensed Practical Nurse, Management Consultant, Medical Doctor, Public Administrator and Registered Nurse.
So let's go back to basics. That reminds me of a Vince Lombardi story that I've heard in different forms. Lombardi was addressing his then reigning world champion Green Bay Packers following a particularly disappointing loss. After staring at his players with a look that struck fear into these professional athletes, reducing them to kids, Lombardi said, "It looks like we need to get back to basics." Holding up a football that would normally have been given as a game ball to outstanding players from that game, he said further, "Gentlemen, this is a football." I sometimes think we need the same admonition regarding mediation.
Definitions of mediation include the following:
– Mediation is an alternative dispute resolution (ADR) process in which a trained neutral mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties enables them to understand and to reach a mutually agreeable resolution to their dispute. It helps the parties understand and recognize their underlying needs, overlapping interests and areas of agreement. (Virginia's Judicial System, 2009)
– Mediation is simply a facilitated negotiation. (Holbrook, 2006)
– Mediation is, at its heart, a structured negotiation conducted with the assistance of a third-party neutral, the mediator. (Clare, 2003)
Not to belabor the point further, and based on the various tomes I reviewed relating to this issue, mediation is not defined or even mentioned as a strictly legal process.
More to the point, it is not known for being a legal process. In fact, as pointed out in our own "Green Book" and much of the mediation literature, the law is a relative newcomer to this process of dispute resolution. In an article appearing in Dispute Resolution Ethics: A Comprehensive Guide, Douglas Yarn wrote, "When the American Bar Association (ABA) promulgated the Model Code of Professional Responsibility and the Model Rules of Professional Conduct, mediation was not even on the radar screen". "Outside of arbitration, the concept of engaging an impartial third party to resolve a dispute was completely antithetical to the prevailing practice of attorneys in an adversarial adjudicative system." (Yarn, 2002)
What I've written so far satisfies the academician in me; now let's focus on non-attorney mediators.
Maybe the most important point is to remind us that there are good and poor mediators. There are those who set out to settle as many cases as they can; cut the notch on the belt and move on. There are those who see mediation as a sprint; move through as fast as possible and see how many multiple mediations can be fit into a day. And, there are those who see mediation as an encounter group; a process to be savored as a fine wine with all participants leaving in full self-actualization and a Zen-like state of euphoria. OK, so these are descriptions of the extreme but you get the point.
In some cases, it is most appropriate to have a trained attorney mediator who is also well versed in the theory and practice of mediation. But, in my opinion, in most of the mediations in which our members are involved, the issue is not the law. In fact, if the disputed issues involve the law, the case should most probably go to court because that's where arguments of law are settled.
As mediators, we are there to facilitate a successful conclusion to a conflict. Currently, in North Carolina, the opportunities to mediate a conflict before it becomes a legal issue are rare. We know that the skill set necessary to accomplish this goal does not require one to be an attorney. But -- and it is an important "but" -- given the nature of mediation in North Carolina today, one does need to have a good understanding of the law. Frankly, even beyond the daylong course currently required for certification.
Yet, just as I would argue that an understanding of the law beyond the average layperson is necessary, so too an above-average understanding of interpersonal communication is necessary. Understanding the psychology of conflict, participative process negotiation, human relations, and the interrelationship between mind, body and spirit are also essential for successfully undertaking mediation. Not the mediation of shuttling numbers, but the mediation of resolving conflict.
I'll end by going back to my comment to the individual looking for input about becoming a mediator in North Carolina. I said, "Keep your day job." I wasn't being funny (not intentionally). I've been certified and mediating in North Carolina for nine years. In this state, attorneys select attorney mediators. Even after working with attorneys who are impressed by what I bring to the table, the vast majority of the time I'm appointed. The plus to that is I tend to get cases where the parties are convinced that settlement isn't possible. I believe this is the really interesting part of mediation. The down side is that I end up with about 15 cases a year. With the number of Dispute Resolution Commission certified mediators who are truly interested in mediating and who didn't just get certified so they might understand the process better, one would think that someone like me should have more than 15 a year. And I don't hold myself up as someone special. There are other non-attorney mediators who have at least as much to offer.
I would hope that we will move beyond the "are you an attorney" to "tell me about your background" in the selection process. Maybe one day.
Steven A. Savia, M.A., CMC is a member of the Dispute Resolution Section Council and served as its CLE Co-Chair for two years. He has been a Certified Mediator in North Carolina since 2002. His over 30 years in management consulting include being a Past Chair of the U.S. Institute of Management Consultants and a regional partner at one of the largest international firms. A significant portion of his consulting practice involves assisting his business and public sector clients in a wide variety of negotiations.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.