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Printed with permission of the author, Cris Currie and mediate.com.
The views and opinions contained in this article do not necessarily reflect those of ADJ. Mediation Services. This article has been prepared for informational purposes only and is not legal advice.
Should A Mediator Also Be An Attorney?
by Cris Currie
Among the more hotly debated issues concerning appropriate qualifications for mediator is the question as to whether it is preferable for mediators to also be lawyers.
In many states, a law degree is a prerequisite for being listed as a court approved mediator. While most jurisdictions permit disputants to choose any mediator, non-attorney mediators are not always considered by court referred disputants. This is because, for most people, it is just easier to pick a name from the court approved list than to do their own research.
The rationale for requiring a law degree and legal experience rests on two assumptions. First, it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented. Because attorneys are the traditional gatekeepers of the justice system, it is important to examine these assumptions closely.
In 1989, the Society of Professional in Dispute Resolution’s (SPIDR) Commission on Qualifications issues a report with the following recommendation: Knowledge acquired in obtaining various degrees can be useful in the practice of dispute resolution. At this time and for the foreseeable future, however, no such degree in itself ensures competence as a neutral. Furthermore, acquiring a degree would foreclose alternative avenues of demonstrating dispute resolution competence. Consequently, no degree should be considered a prerequisite for service as a neutral.
In other words, mediation is not a natural extension of the practice of law, because mediation permits a broader definition of conflict as well as a more complete approach to its resolution. Because attorneys are schooled in, and acculturated to, the adversarial approach, it is very difficult (but certainly not impossible) for them to be equally accomplished in a more collaborative approach to settling disputes. There is no evidence to suggest that simply because a conflict may involve issues of law, that legal skills are more relevant to facilitating its resolution that human relations and negotiation skills.
The second assumption used to justify requiring a law degree for mediation is that attorney-mediators can assure justice because of their knowledge of the legal system and the law. This assumption is faulty because it is nearly impossible to render advice without favoring one party or the other.
Thus, it is unethical for mediators to give legal advice in mediation. If parties need legal or any other kind of advice, they are expected to obtain it outside of mediation. However, having a legal background can be advantageous in many mediation situations. The more familiar the mediator is with the legal precedent and procedures specific to the case, the easier it will be for the mediator to help troubleshoot proposed agreements and help parties understand their legal options and responsibilities. Offering disputants this kind of legal information can be quite helpful, but it should also be remembered that it is not necessary to be an attorney to provide legal information. One should also remember that being an information provider is only a small part of what mediators do.
What is most important that mediators, attorney or non-attorney, should not attempt to mediate disputes involving legal issues without some understanding of the legal context surrounding that dispute. How much substantive knowledge a mediator needs is difficult to specify. Complete ignorance of the legal context might cause disputants to unknowingly enter into agreements, which a court might consider inappropriate or illegal. At the other extreme, too much substantive expertise can put the mediator’s neutrality at risk by biasing them toward standard solutions and diverting their attention from underlying interests and needs. However, if the parties desire a case evaluation or a prediction as to how a court would rule on a particular issue, then the neutral would need a high degree of substantive knowledge and would probably need to be an attorney. Whether mediation is the appropriate forum for such case evaluation and prediction is also a hotly debated topic.
In mediation, parties have the opportunity to get beyond the confines of law, but their ability to do so depends largely upon the mediator’s understanding of and approach to conflict. While there may be certain advantages to having a legal background, there may also be some disadvantages, which should be kept in mind when choosing a mediator for your case.