In Praise of "Non-Lawyer" Mediators
The phrase "non-attorney" mediator rankles some conflict resolution professionals. They often point out that there are no "non-physician" health care workers -- only nurses, physicians' assistants, physical therapists, and the like.
But just as doctors are not the only people with the education, training and experience necessary to deliver health care services, lawyers are not the only people capable of delivering justice.
This is not a radical proposition. It is a bedrock principle of Anglo-American jurisprudence that twelve "non-lawyers" will (in most cases) be the final arbiters of any litigated case. They are a lawyer's BATNA -- the potentially Better Alternative to a Negotiated Agreement.
Lawyers Did Not Create "the Law" or "Justice"
In Disputing Humor: Comedy, Folkways and the Internet over at the IP ADR Blog we noted that the academics do not define "law" as "just a set of rules, but a life condition in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." /*
I've also recently noted that fairness, i.e., justice, is not only hardwired into us, it also governs the behavior of other primates, particularly the much studied Capuchins.
"Non-Attorney" Mediation and the Law
Most attorneys want their mediator to be educated and skilled in the law for the purpose of conducting position-based evaluative settlement conferences in which litigators do what we do best -- convince the mediator that we are more likely to "win" at trial than our opponent. When I was practicing, I never found this mediation technique to provide tremendously satisfactory results. I'm a pretty good lawyer. And I know my case really well. I've often spent years evaluating the risk of going forward and the possibility of settlement. If I've done anything, you can be certain that I've done a cost-benefit analysis with and for my client.
It will take you ____ years to get to trial, which will cost you $________. You have ______% percent chance of winning and your (or your opponent's) potential monetary liability is in the range of $________ to $____________. We have an unpredictable Judge and a downtown Los Angeles jury. On the other hand, the plaintiff wants $50 million.
Unless I'm having trouble convincing my client to see reason (and I very rarely do) no mediator -- whatever his or her qualifications -- is likely to change my mind by giving my legal analysis a quick physical exam on the day of the mediation. Listen, we're only litigating the darn thing because the questions are close ones. Not to mention the cognitive biases that almost assure the evaluative mediator's inability to convince me that I'm wrong. (see Michael Webster's recent post on Why Hoaxes Work -- citing some of the biases that will largely result in my rejecting the mediator's view of the merits of my case.)
If case evaluation is your only skill, absent water-boarding, I'll be in the same place at midnight as I was at 8 a.m.
Interest-Based Facilitative Mediation
No matter how sophisticated our clients, they come to us with stories of injustice -- not stories about the law. We lawyers are skilled at solving "injustice" problems only when a right and a remedy exists. If you don't have a right, there's no remedy. You might well be the victim of an injustice but, sorry pal, there's not much I can do for you unless you're prepared to pay me to make new law.
So what do mediators -- particularly non-attorney mediators -- have to offer our clients when the best we can do is say "swallow the injustice and move on."
Quite a lot. Mediators -- lawyers or not -- are trained to look for, capitalize on, and synergize the parties' mutual personal or commercial interests in an attempt to resolve disputes that we lawyers reduce to "legal cases." Unfortunately, some of those interests include the parties' understandable desire to escape from the legal process itself. I'd rather see some of these justice system issues resolved than capitalize on them to muscle parties into settlement, but the Courts are what they are and the system does what it does -- slowly, cumbersomely, expensively, distractingly, maddeningly, intrusively and unpredictably.
Resolving Contract Disputes with Non-Lawyer Mediators
Because I'm speaking to the Los Angeles Superior Court's "non-attorney" mediators about the law of contracts today, I'm focused on the settlement of contract litigation. This type of litigation is extremely well suited to resolution by "non-lawyers" because the parties' interests have already largely been defined and the law is not -- really -- very complex.
The contract that ends in litigation began where mediation is supposed to conclude -- in agreement. To reach the original agreement the parties spent days, weeks, sometimes years horse-trading one set of interests for another. In the process, they invariably learned their bargaining partners' desires, fears, capacity for risk, and, business strategies, often at depth.
The position-oriented evaluative mediator more or less ignores these interests, focusing instead upon the parties' right to enforce or avoid one or more of the contract's obligations; to prove or disprove breach; or, to enforce or annul contractual burdens based upon claims for and defenses against fraudulent inducement and the like. This type of mediator has all kinds of interesting legal issues to understand and evaluate -- issues arising from the statute of frauds and parol evidence rule; canons of contract construction; and, the intersection of fundamental public policy with the parties' ability to contract for whatever and however they like.
Juicy legal issues. Fun for lawyer. Bad for client.
Facilitating Interest-Based Resolutions
A facilitative interest-oriented mediator starts by asking what the parties were attempting to accomplish in the first instance; why they gave up certain rights or remedies at the time of contracting; and, what made the deal break down so spectacularly that they now have four attorneys and two expert witnesses each, all of whom are attempting to extricate them from or compel compliance with a contractual relationship with an equally well-heeled adversary.
Unless they're facing bankruptcy (which often accounts for litigation) the business people are highly likely to have products, services, chains of distribution, networks, technology, information, and prospective commercial advantages that can be traded along with money paid to release one another from liability under the existing agreement. When the parties "finesse impasse by using the litigation as an opportunity to enter into a business deal," they've usually only done so with the assistance of an interest-based mediator.
I won't deny the importance of the mediator's ability to understand the parties' legal positions, which is the reason we teach basic contract law to our "non-attorney" mediators. Nevertheless, case analysis is primarily useful for keeping the parties at the bargaining table when their negotiation starts to run off the rails. As my friend and Straus colleague Judge Alexander Williams likes to say -- "often the parties just need a little more litigation therapy before they're ready to settle."
Mediation is a Theory, a Practice, and a Profession All Its Own
This is not retirement. And though we're not therapists in the justice delivery business, we're also not its lawyers or arbiters either. We're negotiators and patient advocates. We help conflict-ridden parties communicate with their dispute resolution physicians and with their fellow sufferer across the hall. It's good for us to understand what the doctor means when she lapses into doctor-ese, but it's not necessary for us to understand the entire disease process to do our job. We will never know your case as well as you do. And you will never know your client's intrerests as well as it does.
The purpose of the mediation is to bring all of these elements together to create something better than a litigated resolution can deliver.
Why in Praise of Non-Attorney Mediators?
First, let's remember that we owe mediation theory and practice to people who wouldn't know a legal remedy from a truck mounted bitumen sprayer -- sociologists, anthropologists, community activists, and, psychologists. Then let's give credit where credit is due to those "non-attorney" mediators who put up with a huge amount of horse dung about their supposed inability to mediate "legal" disputes without attending law school.
Back to Contract Disputes
Children make contracts and know who to ask for relief (someone in authority) when they're broken. Adults have been entering into commercial contracts far longer than there's been a formal rule of law to "interpret" and enforce them. So what does a "non-attorney" mediator need to know about the law of contracts? Not much.
I make an offer. You accept. We both do what we say we agreed to do. If we expressed ourselves ineffectively in writing, we try to understand what the heck it was we were thinking when we included some lame phrase in the contract. If we take a look at the interests we were trying to satisfy at the time, and the circumstances in which the contract was drafted, we can usually make sense of those provisions. If someone breached them, they pay for the resulting damage.
If the parties have diametrically opposed interpretations of the contract and a few hundred million dollars hangs on the result, the case isn't ready to be mediated. Instead, the parties should get the matter over to a complex court where the Judge can streamline discovery and move dispositive issues to the forefront for early resolution. Here in Los Angeles, that place is Central Civil West. If you don't have a Court like that in your jurisdiction, create one.
No mediator is going to get the parties to compromise a $500 million legal issue. It's the Courts' job to make the process of resolving the legal issue sufficiently efficient that the parties can obtain the information or interim rulings they need to settle the darn thing or to try it.
No matter how complex the case, at the end of the day, it mostly comes down to fairness -- to a resolution that would seem reasonable to . . . .twelve "non-attorney" adjudicators sitting in a jury box trying to stay alert while you explain the meaning of an "occurrence" clause in a policy of comprehensive general liability insurance.
*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). See the Weyrauch book on Gypsy Law here.
Vickie writes: "Unless they're facing bankruptcy (which often accounts for litigation) the business people are highly likely to have products, services, chains of distribution, networks, technology, information, and prospective commercial advantages that can be traded along with money paid to release one another from liability under the existing agreement.
When the parties "finesse impasse by using the litigation as an opportunity to enter into a business deal," they've usually only done so with the assistance of an interest-based mediator."
This is right, but I doubt that for any complex contract case a non lawyer mediator can spot these tradeoffs.
Might be wrong.
how about a former business executive in the industry involved?