24 Rev. Litig. 499

No J.D. Required: The Critical Role and Contributions of Non- Lawyer Mediators

Matthew Daiker

Contrary to the opinions of many so-called mediation experts, not only should non-lawyers be permitted to mediate disputes, but non-lawyer mediators bring to the process their own strengths and attributes, many of which are not possessed by lawyer mediators. As such, this article argues that the 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 and negatively impacts the people that mediation intends to help: the parties. After examining the central challenges to and criticisms of non-lawyers acting as mediators, this article describes the skills and attributes of non-lawyer mediators as well as the critical contributions they have made and continue to make to the field of mediation. The article concludes that the burgeoning mediation profession would be seriously weakened if non-lawyer mediators were excluded from its ranks.

 

   I. Introduction    Recently, an older friend of mine expressed an interest in becoming a mediator. At the time, she had no formal background in law and possessed an undergraduate degree in French. As a result, I wondered about her potential effectiveness as a mediator. A part of me thought that even if she were given the appropriate training to mediate disputes, 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 participated several years ago after her ex husband filed for divorce. I concluded that her lack of a law degree did not matter, and that if she were given appropriate mediation training she would make an excellent mediator.    Many people, including mediation experts, would question my conclusions. They would likely point to my friend's 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. n1 Some experts even go a step further and maintain that a central requirement for certifying and licensing mediators should be a law degree. n2 Consequently, these experts believe that non lawyers should not mediate.    This article 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 article contends that not only is possession of a law degree unnecessary for effective mediation, but also that limiting mediation to lawyers and retired judges significantly hurts the entire mediation process and negatively impacts the people that mediation intends to help the parties. Part II explains the mediation process, describing its purpose, the role of the mediator, the necessary qualifications to act as a mediator, and the three main styles of mediation: facilitative, transformative, and evaluative. Part III examines the central challenges to and criticisms of non lawyers acting as mediators. Conversely, Part IV 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, Part V outlines additional reasons, apart from the many attributes and contributions of non lawyers, why it would be a mistake for the burgeoning mediation profession to exclude non lawyer mediators from its ranks.    II. Overview of the Mediation Process In order to determine which characteristics and attributes make an effective mediator it is imperative to be familiar with the overall process of mediation. Similarly, it is important to understand the role of the mediator as well as what qualifications, if any, a mediator must possess in order to mediate. Lastly, it is helpful to recognize and comprehend the three styles of mediation facilitative, transformative, and evaluative and how the style each mediator uses impacts and alters the mediation process.    A. Definition and Goals of Mediation    Mediation is the process by which an impartial third party a mediator attempts to settle a dispute by aiding the communication between the conflicting parties. n3 The goal of mediation is to isolate contentious issues so that the parties can contemplate possible solutions and arrive at a consensual settlement. n4 The consensual nature of a mediated settlement, where the parties themselves are responsible for making decisions, is the central way in which mediation differs from adjudicative procedures, such as arbitration. n5 While disputing parties are sometimes forced to engage in court ordered mediation, a mediating party always has the right not to settle and to explore alternative remedies. n6    Key differences become readily apparent when one compares the mediation process to the litigation process. "Adversarial" is the word that best describes our legal system. Two parties square off against one another until a judge or jury determines who wins and who loses. n7 Absent a mistrial, one side is right and one side is wrong. Meanwhile, legal procedures guard the rights of each party, providing for such protections as adequate time to present one's case and the opportunity to confront adverse witnesses. n8 Conversely, mediation purposely allows for changing and unstructured approaches in an effort to solve the dispute. n9 All parties are given equal time to express their views on the issues that created the conflict. However, that communication and the subsequent responses will then dictate the direction in which the mediation will then proceed. n10 Thus, strict procedural rules do not exist. n11 Instead, a positive mediation will aim "to keep productive communication flowing between the parties and to focus on the problems to be solved, keeping the issues at the forefront." n12    B. The Role of the Mediator    The mediator functions as a neutral, unbiased outsider within the negotiation process, listening to the concerns voiced by each party and helping to establish paths of communication and dialogue. n13 In general, the mediator strives to reduce the problems and challenges that frustrate settlement and produce a constructive climate where the parties can reach an agreement more easily. n14 Unlike a judge or an arbitrator, the mediator has no authority to impose an outcome on the disputing parties. n15 The mediator's hope is that the increased discourse and positive environment "will lead to mutual understanding and . . . to an agreement which will restore or create . . . a future relationship without conflict." n16    The mediator uses many tactics to encourage communication. Early stages of mediation usually call for a more passive approach characterized by listening to the issues, exploration of the facts, and empathy for each party's concerns. n17 More active tactics that the mediator can employ include urging the parties to listen, pushing the parties to face facts, encouraging constructive emotional outbursts, and commending efforts to accommodate the other party. n18 Mediators can also caucus with each party in hope that an individual meeting will break down barriers and reveal common interests. n19    Some mediators choose to utilize more active mediation techniques. One such tactic is called "reality testing." Usually employed after the mediation process has reached an impasse, "reality testing" involves the mediator's openly analyzing a disputant's claims and the potential problems with proving those claims in a court of law. n20 A similar technique requires the mediator to challenge their parties to consider the best and worst alternatives to a negotiated settlement. n21 Mediators commonly use the acronyms "BATNA," Best Alternative to a Negotiated Agreement, and "WATNA," Worst Alternative to a Negotiated Agreement, n22 when referring to these approaches. n23 These more active mediation methods have proven helpful in reducing unrealistic party expectations and fostering further communication. n24    How well the mediator uses these tactics to encourage productive discussion usually determines whether the parties come to an agreement, whether the agreement stands up to the test of time, and whether the disputing parties are satisfied with the overall process of mediation. n25    C. Mediator Qualifications    Throughout the country, mediation programs employ many different approaches in the course of deciding what qualifications are necessary to mediate. n26 However, these approaches have very little in common. n27 Although numerous states and municipalities impose minimum requirements for mediators, n28 perhaps the only qualification these entities share is some form of "mediation training." n29 In addition to training, which also varies dramatically throughout the country, n30 some programs require an apprenticeship with a mentor, while others conduct performance evaluations of prospective mediators. n31 Still others impose degree requirements or demand a specific amount of "experience." n32    One might assume that the federal Alternative Dispute Resolution Act of 1998 would enumerate the precise qualifications that all mediators must possess. n33 Unfortunately, the House and Senate chose not to take on this issue, merely requiring that "each person serving as a neutral in an alternative dispute resolution process should be qualified and trained to serve as a neutral in the appropriate alternative dispute resolution process." n34 Detailed studies of mediators and what qualifications make them effective have also provided little guidance, n35 a fact that helps explain the divergent mediator requirements across the country. n36 The one trait that has a positive correlation to mediator effectiveness is mediation experience. n37 As a consequence of such findings, professional associations who work in mediation have expressly warned against requiring an advanced degree, such as a J.D., to participate as a mediator since there is no proof that possessing such a degree makes a mediator more effective. n38    D. Facilitative, Transformative, and Evaluative Mediation    Since mediation first came into vogue in the 1970s, a wide variety of approaches and styles have been developed to help parties reach a settlement. Some mediators prefer to use passive tactics in pursuit of a less intrusive, facilitative process that encourages collaboration between the parties. Other mediators choose to focus on the parties themselves, putting the power of change in the parties' hands in hope of transforming their current relationship in a positive way. Still other mediators believe that incorporating active tactics while using direct evaluation and analysis of each party's case is the better method of coming to a mutual agreement. What follows is a brief examination of these three models. n39    1. Facilitative Mediation    Facilitative mediators attempt to create an environment where the conflicting parties can reach a mutually agreeable solution. The facilitative mediator will try to confirm and normalize the views of each party while exploring the underlying interests for the positions taken. n40 In doing so, the mediator encourages the parties to generate and analyze possible options for resolution. n41 Significantly, the facilitative mediator does not offer recommendations to the disputing parties, either separately or when the parties are together. n42 Moreover, the mediator will not give his or her opinion regarding any issue or as to the possible outcome of the case. n43 Thus, the facilitative mediator "is in charge of the process while the parties are in charge of the outcome." n44    2. Transformative Mediation    According to the founders of the transformative mediation technique, Robert Baruch Bush and Joseph Fogler, transformative mediators help the parties come to an agreement through empowerment and recognition. n45 The mediator assumes an even more neutral role than in the facilitative context, attempting to empower each party as much as possible to guide the mediation process themselves and to search out their own solutions. n46 Simultaneously, the transformative mediator encourages each party to recognize the interests, needs, and values of the other party. n47 Using empowerment and recognition, the mediator strives to foster a foundational change in how the parties deal with the dispute and with each other, leading to the possibility that the parties' relationship will be transformed as the mediation progresses. n48 As a result, in the view of Bush and Folger, the transformative nature resulting from the mediation itself matters as much as, if not more than, the parties reaching a settlement. n49    3. Evaluative Mediation    Evaluative mediation encourages a much different role for the neutral third party. Modeled after the settlement conferences conducted by judges, evaluative mediators help the parties come to an agreement by highlighting the strengths and weaknesses of each party's case. n50 In doing so, the evaluative mediator gives opinions, advice, and analysis concerning the issues of the dispute. n51 The case may involve legal questions. The evaluative mediator's assessment of the legal arguments of the parties or probable outcome of a subsequent trial is deemed helpful, and even necessary to resolve the conflict. n52     Regardless of how a mediator chooses to conduct his or her mediation session, the education and training will inevitably influence that process. The next part of this article explores some of the challenges facing those mediators who do not possess a law degree.    III. Challenges Facing the Non Lawyer Mediator While there are numerous approaches, techniques, and tactics that a mediator may employ 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.    A. Informing Parties of Their Legal Rights and Obligations One problem facing non lawyer mediators is their ability to accurately inform the parties of their legal rights and obligations. n53 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. n54 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. n55 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. n56 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. n57 And while the mediation training received by non lawyers 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 the cases. n58    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 arises with respect to whether a non lawyer may lawfully provide that information to the parties. Many legal experts consider the giving of such information the practice of law, which is unlawful when performed by anyone but a licensed attorney. n59     The solution for a non lawyer mediator attempting to apprise parties of their legal rights and obligations, while not actually telling them, is to direct them to seek legal advice. n60 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. n61 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. n62    B. Manipulation by Attorneys Representing the Parties 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, n63 some lawyers see mediation as an opportunity to manipulate the process in their client's favor. n64 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. n65 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. n66    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. n67 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. n68 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. n69 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.    C. Leveling Positions of Strength 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. n70 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. n71    For example, disputes arising between two people who were once intimate and cohabitated often result in one person negotiating from a position of strength. n72 Typical questions that 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. n73 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." n74 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. n75 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. n76 Such recognition and leveling of positions present a greater challenge for non lawyer mediators.    IV. Attributes and Contributions of the Non Lawyer Mediator 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.        A. Informal Environment 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. n77 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. n78    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. n79 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. n80 Instead, by ignoring such substantive legal rules, the possibility of a solution that works for both parties substantially increases. n81    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. n82 As such, the informality brought into the mediation process by non mediators fosters more creative answers to everyday situations, increasing the likelihood that present problems will be solved fairly and future problems will be avoided.    B. Interest Based Problem Solving Lawyer mediators, even when they assume a role as a neutral, often have trouble finding common ground where both sides experience a positive result. n83 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. n84 Conversely, non lawyer mediators may have a much less combative and antagonistic mindset. n85 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. n86 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. n87    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. n88 The authors describe a situation where two children both want an orange, yet there is only one. n89 A lawyer mediator, employing adversarial approach, would likely divide the orange in half and give each child an equal portion of the fruit. n90 However, a non lawyer mediator, using an interest based problem solving approach, would inquire as to why each child wanted the orange. n91 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. n92 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 more frequently than the adversarial mediator. n93        C. Participation by Parties 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. n94 In fact, if represented by counsel, a party may not speak at all during a mediation. n95 Non lawyer mediators, however, have shown greater sensitivity to the parties themselves and their desire to have more control over the mediation process. n96 Non lawyers show this increased sensitivity by speaking directly to the parties and encouraging their unfettered expression in attempting to reach a settlement. n97 As a result, parties participating in a mediation conducted by non lawyers may play a 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, bound by any agreement reached, are much more satisfied with the process as a whole. n98 Moreover, studies have also shown that when parties play an active role in reaching a mediated agreement, they are more committed to following through with that resolution than they are with a court ordered settlement. n99    D. Role in Historical Development of Mediation Finally, prohibiting non lawyer mediators to conduct mediations turns 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. n100 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 comes to finding positive solutions for society's everyday problems. n101    How did non lawyers help alleviate such legal shortcomings in the past? 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." n102 In response to these frustrations, non lawyers assisted in the development of many of the mediation programs that remain intact today. n103 Not surprisingly, most of these mediation programs sharply contrast with the modern litigation process and, for this reason, most have garnered praise for their affordability, malleability, and non combative nature. n104 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.    V. Additional Reasons to Allow Non Lawyer Mediators 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, including: the minimal advantages that a J.D. gives a mediator, the ministerial advice that non lawyers may legally supply to mediating parties, and the diversity benefits that non lawyers bring to the field of mediation.    A. Lawyer Mediators and Improper Legal Advice What does possessing a law degree actually do for the mediator, not to mention the disputing parties and the mediation process as a whole? According to most experts, it does very little. As discussed above, n105 there is no proof that possessing a J.D. makes a mediator more effective. n106 As Professor Carrie Menkel Meadow observes, "just 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." n107    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. n108 This stems in part 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. n109 This practice often causes lawyer mediators to offer legal "advice" when they are only permitted to offer legal "information." n110    B. Non Lawyer Mediators and Ministerial Legal Advice While non lawyer mediators may not offer legal advice, courts have held that they may give administrative help concerning legal matters. In Florida Bar v. Brumbaugh, n111 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. n112 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. n113 However, any type of advice, including which forms the persons should complete, was strictly forbidden. n114 Thus, the non lawyer may give administrative or ministerial assistance to others and no violation would exist. n115 The same standard would apply in the mediation setting as well, permitting non lawyer mediators to help parties with their ministerial questions and tasks. n116     Within the specific context of possible UPL violations by non lawyer mediators, a Virginia court applied a similar standard as the court in Brumbaugh and reached the same conclusion. In Virginia v. Steinberg, n117 a non lawyer mediator drafted a letter to the parties explaining to them their legal options and provided them with a legal analysis of their particular case. n118 Most damaging to the mediator's cause, however, was the fact that he eventually drafted a separation agreement for the two parties. n119 Not surprisingly, the Virginia Circuit Court found that the assistance rendered by the non lawyer mediator went far beyond ministerial aid and, consequently, constituted a UPL violation. n120 The Steinberg court reiterated the rule announced by the court in Brumbaugh that a non lawyer may render administrative or ministerial assistance, but nothing beyond that. n121        C. Non Lawyer Mediators and Diversity A diverse body of mediators, all of whom contribute to the development of the profession, 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." n122 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 were 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." n123    Several other mediation experts have reiterated Professor Love's sentiments concerning the importance of mediator diversity. For instance, attorney and mediator Stephanie Henning states that "the variety of perspectives offered by mediators from different professions and backgrounds have contributed to the strength of the field [of mediation]." n124 As a result, development and innovation within the field would significantly suffer. n125 Henning further contends that only allowing lawyers to mediate would "undermine the . . . empowerment goals at the core of many . . . mediation programs." n126 Worst of all, Henning concludes, limiting mediations to only those mediators who possess a J.D. would impose "great disadvantages" to the disputants. n127    VI. Conclusion    Non lawyer mediators make the mediation process better. Studies and writings overwhelmingly demonstrate that possession of a law degree does not improve the effectiveness of a mediator and may actually hinder mediators who have had legal training. 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 because they bring to the field their own strengths and attributes, many of which are not brought to the field by lawyer mediators.
           
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