Student Spotlight: Despite Challenges, Non-Lawyer Mediators Make Critical Contributions to the Field of Mediation

Essay by Matthew Daiker

Recently, an older friend of mine expressed an interest in becoming a mediator. Having no formal background in law and possessing an undergraduate degree in French, I wondered about her potential effectiveness as a mediator. Even if given the appropriate training to mediate disputes, a part of me thought that she would be at a significant disadvantage compared to mediators who possessed legal training in addition to mediation training. However, I then began to think about her relaxed and confident demeanor, her various experiences during a twenty-five year career as a high school teacher, and the mediation in which she had participated several years ago after her ex-husband filed for divorce. I concluded that her lack of a J.D. did not matter and that, given appropriate mediation training, she would make a fantastic mediator.

Many people, including mediation experts, would question my conclusions. They would likely point to the lack of legal training and contend that such non-lawyer mediators are severely limited in their ability to successfully mediate disputes because they cannot accurately assess the strengths and weaknesses of each party's case should the dispute go to trial. Moreover, even if non-lawyer mediators believe that they can analyze the legal positions of the parties, they are forbidden from offering such views because only licensed attorneys may do so. If a non-lawyer mediator were to evaluate the likely outcome of a potential case and voice his or her opinion, it would constitute legal advice and, as such, the unauthorized practice of law. A number of mediation experts believe that this evaluative technique is an indispensable part of successful mediation and, because they cannot employ this technique, non-lawyer mediators cannot effectively mediate. [1] Some experts even go a step further and maintain that a central requirement for certifying and licensing mediators should be a law degree. [2] Consequently, these experts believe that non-lawyers should not mediate.

This essay argues the contrary. It asserts that not only should non-lawyers be permitted to mediate disputes, but that non-lawyers bring to the mediation process their own strengths and attributes, many of which are not possessed by lawyer mediators. As such, the essay contends that possession of a law degree not only is unnecessary for effective mediation, but limiting mediation to lawyers and retired judges significantly hurts the entire mediation process. The essay first examines the central challenges to and criticisms of non-lawyers acting as mediators. It then describes the skills and attributes of non-lawyer mediators as well as the important contribution they have made and continue to make to the field of mediation. Finally, the essay outlines additional reasons why the burgeoning mediation profession should not exclude non-lawyer mediators from its ranks.

While there are numerous approaches, techniques, and tactics that a mediator may employ, [3] which are in no way dependent upon having a law degree, non-lawyer mediators can face situations where legal training would likely prove helpful. Several situations that pose important challenges to the effectiveness of the non-lawyer mediator deserve a more detailed examination.

One problem facing non-lawyer mediators is their ability to accurately inform the parties of their legal rights and obligations. [4] Mediators are often asked: "What do you think will happen if this goes to trial?" or "What does the law say about my situation?" or "What is my case worth?" Without a law degree, the majority of non-lawyer mediators simply will not possess the requisite training to properly answer such questions. Critics of non-lawyer mediators argue that the inability to explain to the parties their legal rights and obligations significantly hinders the possibility of reaching a fair and workable agreement. [5] Moreover, non-lawyers may be less effective at "reality testing" which, as noted above, allows the mediator to analyze a disputant's claims and the potential problems with proving those claims in a court of law. [6] Effective mediation, critics of non-lawyer mediators assert, depends upon the parties being made aware of the consequences of settlements as well as the potential consequences of a trial. [7] And while the mediation training received by a non-lawyer may include some education of the rights of parties participating in mediation, the training is insufficient to advise a party of their legal obligations, to reality test, or to analyze the legal merits of their case. [8]

Even if a non-lawyer mediator has acquired sufficient training and is knowledgeable enough to inform mediating parties of their legal rights and obligations, another problem immediately comes up with respect to whether a non-lawyer may lawfully provide that information to the parties. [9] Many legal experts consider the giving of such information the practice of law and thus it is unlawful when done by anyone aside from a licensed attorney. [10]

The solution for a non-lawyer mediator attempting to apprise a party of their legal rights and obligations while not actually telling them is to direct them to seek legal advice. [11] By making such recommendation, the non-lawyer mediator not only avoids the unauthorized practice of law, but also maintains his or her proper place as a neutral third-party merely attempting to improve the lines of communication between the parties. [12] However, it should be noted that encouraging greater attorney-participation within the mediation process may reduce the likelihood of an agreement and will also inevitably increase the cost of mediation. [13]

Another challenge facing non-lawyer mediators occurs when one party in the mediation is represented by counsel. While attorney representation regularly poses no problems at all, [14] some lawyers see mediation as an opportunity to manipulate the process in their client's favor. [15] This could take the form of the attorney not allowing his or her client to communicate at all, or only allowing minimal, unproductive communication, or stonewalling the mediation so that litigation becomes necessary. [16] Such tactics not only drive up the costs of mediation, but they often exacerbate an already emotional situation and, in the process, frustrate many of the purposes of pursuing a mediated settlement in the first place. [17]

A non-lawyer mediator presented with such circumstances actually faces two problems. First, the mediator must recognize that the attorney is attempting to manipulate the mediation process in his or her client's favor. [18] Such recognition of often subtle "lawyering" is difficult to identify for any mediator, but is especially difficult for those without the legal training. Second, assuming the non-lawyer mediator becomes aware of the tactic, he or she must be able to steer the mediation toward more effective communication and a resolution that benefits all parties. [19] Again, this is no easy task and the non-lawyer mediator may face additional problems against a persistent and cunning attorney representing one of the parties. [20] In such circumstances, the non-lawyer attorney may have no choice but to end the mediation rather than permit the parties to strike a potentially one-sided agreement.

A final problem that the non-lawyer mediator may have to overcome is when, regardless of attorney representation, one party is negotiating or participating from a position of strength. [21] This can result from one party having more experience in mediation or having the upper hand in their previous relationship. Some experts have observed that one party may be able to intimidate or even charm the other party and possibly do the same to a non-lawyer mediator who may not be aware of these positions of influence. [22]

For example, disputes arising between two people who were once intimate and cohabitated often result in one person negotiating from a position of strength. [23] Questions that typically come up after the two parties separate are who will pay the rent, who will have to move out, and who will get to keep the furniture. And as Professor Marsha Freeman has observed, one party usually has influence over the other, though this control can be difficult to recognize. [24] Professor Freeman states that a non-lawyer mediator may "never catch on to the underlying posturing or be at a loss to significantly affect the results without totally derailing the mediation." [25] A lawyer-mediator, however, who has had exposure to such live-in disputes through divorce, child-custody, or other tenant-tenant cases during day-to-day practice, can more easily identify such party inequities. [26] Furthermore, because the lawyer mediator is better able to recognize the unequal bargaining positions, he or she can then take the necessary steps to help level the mediation so that the parties can come to a more even agreement in the end. [27] Such recognition and leveling of positions present a greater challenge for non-lawyer mediators.

While the above complaints have merit, the possible challenges facing non-lawyer mediators are substantially offset by the positive contributions that they have made and will continue to make to the mediation profession. The most notable attributes receive greater attention below.

Within the mediation environment where free communication generally leads to agreement, increased informality can only help the process. As explained by professor and lawyer mediator Paul Spiegelman, the very fact that they have not had legal training better enables non-lawyer mediators to remove the rigid formalities and legal rules that often infect and hinder mediation. [28] As a result, the disputing parties are free to concentrate on the issues at hand and to explore unique solutions that courts are unable to consider. [29]

Professor Spiegelman uses as an example a simple boundary dispute between two neighbors in which a court would likely have awarded the land to one neighbor or the other. [30] As neighbors who will inevitably have frequent contact with one-another, the all-or-nothing result could very well lead to a strained relationship and bigger problems in the future. A settlement mediated by a non-lawyer, however, could benefit from that fact that the probability of one side prevailing in court based upon strict rules of property law may never enter the discourse. [31] Instead, by ignoring such substantive legal rules, the possibility of a solution that works for both parties substantially increases. [32]

In the case of the boundary dispute, a settlement mediated by a non-lawyer could allow one neighbor to use one portion of the property and the other neighbor to use a different portion of the property. Just as important as the settlement, though, is the fact that the two neighbors would then have a mutually beneficial resolution and positive communication upon which to base future dealings. [33] As such, the informality brought into the mediation process by non-lawyer mediators fosters more creative answers to everyday situations, increasing the likelihood that present problems will be solved fairly and future problems will be avoided.

Lawyer mediators, even when they assume a role as a neutral, often have trouble finding common ground where both sides experience a positive result. [34] This stems in part from the legal training that lawyer mediators receive which often creates an adversarial mentality, where one side stands in stark contrast to the opposing side. [35] Conversely, non-lawyer mediators may have a much less combative and antagonistic mindset. [36] Instead of immediately identifying parties with certain positions and a one-on-one dispute, non-lawyer mediators are capable of looking behind party positions to their underlying interests. [37] Exploring the interests of the parties opens up a wider range of solutions and increases the possibility of a "win-win" agreement, where both parties reach their desired result, as opposed to a "split-the-difference" compromise. [38]

The classic illustration of how interest-based problem solving can better a positional approach was set forth by Roger Fisher and William Ury in their landmark work Getting to Yes. [39] The authors describe a situation where two children both want an orange, yet there is only one. [40] A lawyer mediator, employing adversarial approach, would likely divide the orange in half and give each child an equal portion of the fruit. [41] However, a non-lawyer mediator, using an interest-based problem solving approach, would inquire as to why each child wanted the orange. [42] If one child merely needed the orange peel to make candy and the other just wanted the fruit portion to eat, Fisher and Ury conclude, each child could receive exactly what they desired and neither would have to compromise. [43] While such positive results may not be possible in every conflict, the interest-based problem-solving mediator will explore and arrive at such "win-win" solutions much more frequently than the adversarial mediator. [44]

Another attribute of typical non-lawyer mediators is their willingness to allow those parties represented by an attorney to personally participate in the mediation. Often when parties are represented by counsel, a lawyer-mediator will communicate more with the attorney and not with the party personally involved in the dispute. [45] In fact, if represented by counsel, a party may not speak at all during a mediation. Non-lawyer mediators, however, have shown greater sensitivity to the parties themselves and their desire to have more control over the mediation process. [46] Non-lawyers show this increased sensitivity by speaking directly to the parties and encouraging their unfettered expression in attempting to reach a settlement. [47] As a result, parties participating in a mediation conducted by non-lawyers play a much more active role and exert greater influence over any solution that results.

In turn, the increased party participation fostered by non-lawyer mediators leads to other benefits. For example, studies have demonstrated that when given greater control over the negotiations, the parties, who have to live with any agreement reached, are much more satisfied with the process as a whole. [48] Moreover, studies have also shown that when parties play an active role in reaching a mediated agreement, they are much more committed to following through with that resolution than they are with a court-ordered settlement. [49]

Finally, not allowing non-lawyer mediators to conduct mediations would turn a blind eye to the important contributions that they have made to the field of professional mediation. Two areas of mediation in particular, Professor Spiegelman contends, have substantially benefited from the involvement of non-lawyer mediators: divorce mediation and community mediation. [50] Spiegelman observes that within the past thirty years, non-lawyers have played a crucial role in recognizing the inherent shortcomings of the legal system when it came to finding positive solutions for society's everyday problems. [51]

How did non-lawyers help alleviate such legal shortcomings? Many of them recognized that neighbors disputing a property line or a couple wanting an uncomplicated, cost-effective divorce felt frustrated by a legal system which "was too formal, adversarial, expensive, and inflexible." [52] In response to these frustrations, non-lawyers assisted in the creation and development many of the mediation programs that remain intact today. [53] Not surprisingly, most of these mediation programs sharply contrast the modern litigation process and, for this reason, most have garnered praise for their affordability, malleability, and non-combative nature. [54] It would be ironic, not to mention cruel and insulting, to remove non-lawyers from the mediation process when they have made so many important contributions to help establish the profession in the first place.

The attributes and contributions of non-lawyers speak volumes about the talent and perspective that they bring to the mediation profession. There are several other justifications for allowing the participation of non-lawyer mediators that are also significant and worth discussing.

What does possessing a law degree actually do for the mediation process? According to most experts, it does very little. As discussed above, there is no proof that possessing a J.D. makes a mediator more effective. [55] As professor Carrie Menkel-Meadow observes, "[j]ust because a mediator has a law degree-or even an up-to-date license to practice-does not mean that he or she will give accurate legal advice, prediction, or evaluation." [56]

Furthermore, a J.D. could actually act as a hindrance to a mediator. Some studies have found that lawyers make worse mediators than non-lawyers. [57] This stems from the fact that lawyers, because they have a legal degree, believe that they may weigh in on every legal issue they are presented with, including when they are functioning as a mediator. [58] This practice often causes lawyer mediators to offer legal "advice" when they are only permitted to offer legal "information." [59]

While non-lawyer mediators may not offer legal advice, courts have held that they may give administrative help concerning legal matters. In Florida v. Brumbaugh, [60] the Florida Supreme Court addressed the question of whether non-lawyers who offered assistance to people wishing to self-file for divorce were engaging in the unauthorized practice of law. [61] The court held that the non-lawyers may furnish people with a packet of necessary forms and may even type in information onto the forms without fear of a UPL violation. [62] However, any type of advice, including which forms the persons should complete, was strictly forbidden. [63] Thus, the non-lawyer may give administrative or ministerial assistance to others and no violation would exist. [64] The same standard would apply in the mediation setting as well, permitting non-lawyer mediators to help parties with ministerial questions and tasks.

A diverse body of mediators benefits the mediating parties and process as a whole. As professor Lela Love cautions, a mediation field comprised entirely of lawyers would "likely pull mediation into an adversarial paradigm." [65] Reducing the adversarial atmosphere so prevalent in the legal system was one of the central reasons why lawyers and non-lawyers originally established mediation programs. Love further contends that if non-lawyers became excluded from the mediation process, "the loss of the talents and perspectives of non-lawyers" would not only severely weaken the profession, but it could constitute "the end of good mediation." [66]

In conclusion, as the above demonstrates, non-lawyer mediators make the mediation process better. Studies and writings overwhelming demonstrate that possession of a law degree does not improve the effectiveness of a mediator. Consequently, not only should programs not require mediators to have a J.D., but the mediation profession ought to encourage more non-lawyers to become trained mediators since they bring to the field their own strengths and attributes.

[1] See, e.g.,Leonard L. Riskin, Understanding Mediator's Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7, 26-28 (1996); Jonathan B. Marks, Evaluative Mediation-Oxymoron or Essential Tool? The American Lawyer, 48A (May 1996); Marjorie Corman Aaron, Evaluation in Mediation, in Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators 267, 268-270 (1996); James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, From an Evaluative Lawyer Mediator, 38 S. Tex. L. Rev. 769, 794-796 (1997).

[2] See Riskin, supra note 1, at 46; Stark, supra note 1, at 788.

[3] See e.g. Elaine Yarbrough & William Wilmot, Artful Mediation: Constructive Conflict at Work 6 (1995); Edwin W. Schwerin, Mediation, Citizen Empowerment, and Transformational Politics 7 (1995); Susan Stewart, Conflict Resolution: A Foundation Guide 17 (1998); Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Risks of Riskin's Grid, 3 Harv. Negot. L. Rev. 71, 75 (1998); Connie J.A. Beck & Bruce D. Sales, Family Mediation: Facts, Myths, and Future Prospects 3 (2001); Brien Wassner, A Uniform National System of Mediation in the United States: Requiring National Training Standards and Guidelines for Mediators and State Mediation Programs, 4 Cardozo Online J. Conflict Resol. 1 (2002); Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes 111 (4th ed. 2003).

[4] See Marsha B. Freeman, Divorce Mediation: Sweeping Conflicts Under the Rug, Time to Clean House, 78 U. Det. Mercy L. Rev. 67, 70 (2000).

[5] See id.

[6] See Robert P. Burns, Some Ethical Issues Surrounding Mediation, 70 Fordham L. Rev. 691, 703 (2001) (describing "reality testing"); Robert Gatter, Unnecessary Adversaries at the End of Life: Mediating End-of-Life Treatment Disputes to Prevent Erosion of Physician-Patient Relationships, 79 B.U. L. Rev. 1091, 1107-08 (1999) (describing "reality testing").

[7] See Matt Wise, Separation Between the Cross-Practice of Law and Mediation: Emergence of Proposed Model Rule 2.4, 22 Hamline J. Pub. L. & Pol'y 383, 406 (2001).

[8] Seeid.

[9] See Freeman, supra note 4, at 71.

[10] See id.; see also Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U. L. Rev. 937, 941-42 (1997); Joshua R. Schwartz, Note, Laymen Cannot Lawyer, But Is Mediation the Practice of Law?, 20 Cardozo L. Rev. 1715, 1736-38 (1999). Many experts within the field of mediation, including Love, contend that even lawyer-mediators should refrain from giving legal advice to mediating parties because such advice could constitute the unauthorized practice of law. For further exploration of this issue, see Loretta W. Moore, Lawyer Mediators: Meeting the Ethical Challenges, 30 Fam. L.Q. 679, 687-89 (1996).

[11] See Freeman, supra note 4, at 71.

[12] See Schwartz, supra note 10, at 1736-37.

[13] See Freeman, supra note 4, at 71.

[14] See id. at 71-72 (noting that many attorneys are sympathetic to the cause of mediation, cooperate with the process, and recognize the benefits to the client).

[15] See id.

[16] See id.

[17] See id.

[18] See id. at 72.

[19] See id.

[20] See id. at 72-73.

[21] See id.

[22] See id. at 72.

[23] See id.

[24] Id. at 72-73.

[25] Id. at 73.

[26] See id. at 73; see also Bruce A. Green, Lawyers as NonLawyers in Child-Custody and Visitation Cases: Questions from the "Legal Ethics" Perspective, 73 Ind. L.J. 665 (1998).

[27] See Freeman, supra note 4, at 73.

[28] See Paul J. Spiegelman, Certifying Mediators: Using Selection Criteria to Include the Qualified-Lessons From the San Diego Experience, 30 U.S.F. L. Rev. 677, 696-97 (1996).

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] See id. at 694-95.

[35] See Love, supra note 10, at 942.

[36] See id.

[37] See Spiegelman, supra note 28, at 694.

[38] See id.

[39] Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In 57 (1981).

[40] Id. at 59.

[41] Id.

[42] Id.

[43] Id.

[44] See Spiegelman, supra note 28, at 694.

[45] See id. at 696.

[46] See id.; see also Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754, 765-766 (1986) (noting that non-lawyers mediators are more open to creative options to court and place much less emphasis on a final dollar figure than lawyer mediators do).

[47] See Spiegelman, supra note 28, at 696.

[48] See Jessica Pearson & Nancy Thoennes, Divorce Mediation: Reflections on a Decade of Research, in Mediation Research: The Process and Effectiveness of Third-Party Intervention 9, 19 (Kenneth Kressel et al. eds., 1989).

[49] See Craig A. McEwen & Richard J. Maiman, Mediation in Small Claims Court: Consensual Processes and Outcomes, in Mediation Research: The Process and Effectiveness of Third-Party Intervention 53, 59 (Kenneth Kressel et al. eds., 1989).

[50] Spiegelman, supra note 28, at 693.

[51] See id.

[52] See id.

[53] See id.

[54] See id.

[55] See Sarah R. Cole et al., Mediation: Law, Policy & Practice § 11:2, at 11-6-11-7 (2d ed. 2002).

[56] Carrie Menkel-Meadow, Is Mediation the Practice of Law? 14 Alternatives to High Cost Litig. 57, 61 (1996).

[57] See Wise, supra note 7, at 407.

[58] See Id. at 406-407; Spiegelman, supra note 28, at 694.

[59] See Cole, supra note 55, § 1:1, at 1-2.

[60] 355 So. 2d 1186 (Fla. 1978).

[61] Id. at 1189.

[62] Id. at 1189-90.

[63] Id. at 1190.

[64] Id. at 1194.

[65] Love, supra note 10, at 942. See also James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 Fla. St. U. L. Rev. 47, 50-51 (1991) (noting the coercive nature of mediation when controlled by lawyers).

[66] Love, supra note 10, at 942 (citing Alfini, supra note 65, at 47).