(Originally published in the conflict conversations blog)
In a 2012 article in the Harvard Negotiation Law Review, Professor Jacqueline Nolan-Haley, Fordham University School of Law, argues that
[as] lawyers become increasingly visible representing parties in mediation, a phenomenon referred to [...] as “legal mediation,” the boundaries between mediation and arbitration are blurring. Whereas mediation once offered disputing parties a refuge from the courts, it now offers them a surrogate for arbitration. While mediation advances toward an arbitration model, arbitration, in the view of some scholars, is becoming the “new litigation.”
She makes her own view of this development very clear:
[...] mediation’s directional shift toward the arbitration practice zone is for the worse. It limits the spectrum of options available to disputing parties, leaving them a single forum with variations of adjudication. This deprives parties of the primary benefit of mediation – a type of mercy, which provides relief from the rigidity of the formal justice system, with its adversarial orientation. In the mediation process, parties have the opportunity to experience individualized justice through the exercise of self-determination and the expression of participatory values. Mediation’s shift toward arbitration practice clashes with these core values. It also diminishes the development of parties’ problem-solving capacities and the relational benefits identified by Lon Fuller in his oft-cited reflection of mediation’s “capacity to reorient parties toward each other not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another". [emphases added]
Again, Nolan-Haley terms this development of lawyers' representing parties in mediation, a blurring of boundaries, between two distinct types of dispute resolution processes, mediation and adjudication. She notes that because the respective rules of conduct are markedly different for these processes, lawyers representing parties in mediation ('legal mediation') can act in ways that are proscribed in adjudicatory fora. There may also be another, more insidious blurring of boundaries that might occur when mediation takes place without lawyers. Many mediators come to ADR after training and practising as lawyers. The potential exists that "the spectrum of options available to disputing parties" is narrowed not just in terms of available ADR processes but also in relation to the parties' options for substantive deliberation and decision-making. Such a phenomenon might occur whenever the interventions of lawyer-mediators within the mediation process itself is governed by the primacy of a legal mind-set . A few citations from Nolan-Haley's article allude to potential dangers here:
Over twenty-five years ago, Leonard Riskin acknowledged the pervasiveness of the adversarial legal culture and observed that “most lawyers, most of the time” act in accordance with the lawyer’s standard philosophical map rather than the mediator’s philosophical map.
Here's another one:
In some respects, evaluative mediation becomes an almost inevitable phenomenon when lawyers act as mediators, even when they are trained in a facilitative model. According to Kovach and Love, lawyers “revert to their default adversarial mode, analyzing the legal merits of the case in order to move towards settlement.”
I'm not aware of research that could prove or disprove my own apprehension of a blurring of boundaries. If true, what chance does mediation have “to reorient parties toward each other not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another"?
(H/T: Vlad Spitzer)