Lawyers seeking training as mediators face
distinct challenges due to their specialized legal
training and experience. To make the transition
from counsellor to conciliator, there must be an
awareness of the fundamental differences between
the mediation process and adjudicative processes,
the roles of an advocate and a mediator and the
specialized techniques that are used.
while the parties make persuasive arguments during mediation
and the mediator observes characteristics in parties that would
otherwise lead a person to develop personal feelings that favor
or disfavor individual parties.
A mediator is asked to inquire about the factual background
of a dispute and to entertain the parties’ positions on the issues
and applicable law—without making public or private judg-
ments. They are asked to treat the parties with equal respect,
Lawyermediators, by virtue of their training and experience,
may tend to form early and rigid professional opinions about
a dispute and the parties. In mediation, the challenge is to hold
in reserve the process of judgment, while analyzing the case
and facilitating communication between the parties. Evaluation
of the elements of a case does not necessarily include a global
evaluation or rendering of a judgment. Moreover, the manner
in which a professional evaluation is conveyed does not neces-
sarily require that a lawyer mediator come across as if they are
rending a final judgment; instead, an evaluation can be described
in terms of possible outcomes and can be the basis for a dialogue
with the parties and their attorneys rather than a pronounce-
ment. Mediation is, thus, a process of empowerment, even when
the techniques a mediator uses may be invisible to the parties.
When the Master governs, The people are hardly
aware that he exists. Next best thing is a leader
who is loved. Next, one who is feared. The worst is
the one who is despised. If you don't trust people,
you make them untrustworthy. The Master doesn't
talk, he acts. When his work is done, The people say,
"Amazing, We did it, all by ourselves."
Lawyers seeking training as mediators face distinct challenges
due to their specialized legal training and experience. To make
the transition from counsellor to conciliator, there must be
an awareness of the fundamental differences between the
mediation process and adjudicative processes, the roles of an
advocate and a mediator and the specialized techniques that
are used. The challenge for lawyers is to recognize the difference skill set of a mediator, while simultaneously applying
their substantial base of knowledge and experience. Understanding the differences in procedural structure, formality
and the rules of evidence can help lawyers to find a degree of
comfort in the flexibility, creativity and freedoms of mediation.
Accepting these differences and being prepared to let go of a
lawyer’s traditional role can actually broaden a lawyer’s base of
skills for resolving disputes in the role of a mediator or in their
role as an advocate.
For trainers, it is vital to understand the lawyer's perspective
and to treat it as an educational starting point. Early in mediation
training, there should be a focus on the distinctive nature and characteristics of the mediation process in comparison to adjudicative
processes such as arbitration and trial. Problemsolving should be
comparatively analyzed with factfinding and faultfinding.
Additional focus should be placed on the distinctive role of a
mediator compared to the role of an advocate or judge. The neu-tral/party relationship should be examined and contrasted with
the attorney/client relationship, especially insofar as it may
involve advicegiving. Critical thinking and analysis should be carefully distinguished from sitting in judgment or imposing decisions.
For training of lawyers as mediators to be effective, emphasis
must be given to the fact that the transactional center of the
mediation process is the parties. It is the parties, who, with guidance and counsel from their advocates, have the responsibility
and the freedom to control the outcome and to make decisions
about favorable terms of agreement. It should be stressed that
the mediation process, while structured, is flexible and dynamic.
Mediators are expected to apply various specialized communication and negotiation techniques with discretion, good judgment,
and responsiveness to the particular circumstances of each
case. Role plays, exercises, interactive activities, and case studies
should be developed to help lawyers broaden their perspective to
include a mediative view of conflict resolution.
Lawyers bring an added dimension to the mediation of litigated
cases, in terms of their experience with the trial process, their
knowledge of the substantive law and their practice of working
things out with opposing counsel and parties through negotiation. An enhanced understanding of the mediation process
coupled with legal training and experience will enable a lawyer
to become even more skilled in resolving disputes. Unburdened
from the limitations flowing from custom, ceremony and the
combative nature of the legal process, lawyers can achieve the
transformation from gladiator to mediator.