Maybe it’s not mediation that’s ready for reform, but our reliance on lawyers using evaluative mediation that’s ready for reform.
Maybe it’s not mediation that’s ready for reform, but our reliance on lawyers using evaluative mediation that’s ready for reform. Diana Levine at Online Guide to Mediation in her post Time for a change: Is mediation ready for reform? quotes from the Southeast Texas Record:
For “big stakes” cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.
The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.
“This mutes the parties and returns it to a lawyer-centric, not party-centric system,” Alfini said.
When lawyer-mediators take on an evaluative role – offering opinions on settlement options – the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.
Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of “shuttle diplomacy” – one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.
“This sacrifices effective justice for efficient deal brokering,” he said.
Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.
