This post goes beyond the principles of transformative mediation, so understand that other transformative mediators might see this much differently from how I do. But I was inspired to write this little manifesto on an email listserv of lawyers and mediators in September. It led to some angry responses from mediators and lawyers who thought I had mischaracterized the approaches commonly used here in Minnesota. The email conversation started with a simple question about whether it’s appropriate for mediators to collect their fees from the lawyers involved, rather than the clients. I took the opportunity to do some preaching. I’d love to hear what you think.

This question of lawyers’ responsibility for mediators’ fees runs parallel to other fundamental questions about the purpose and potential of mediation. Here’s why I believe that mediators ideally should only seek and accept payment directly from clients.

Litigation tends to be experienced by clients as too expensive, too time-consuming, too long-lasting, and leading to too unsatisfying results. But they persevere due to a sense of having been victimized by the other side, either in some earlier event or in the initiation of the lawsuit, as well as the sense that an offer of compromise that the other side would accept would entail further victimization of themselves, and would cost too much. Sometimes another factor that helps them persevere is their faith in their lawyer, who provides at least the emotional support of having someone on their side and also sometimes an opinion that continued litigation will be productive. The method used in litigation is generally to attempt to get the other side to believe that a judge, and if necessary, an appellate court, will impose a worse result for the other side than the settlement that is being proposed. That is, each side waves the stick of a worse result in adjudication and provides the carrot of a less worse result through settlement. This experience of being threatened by the other side is part of what makes litigation so unpleasant for parties, and part of what makes it unappealing to them to accommodate each other. The unpleasantness of this process is exacerbated by the clients’ sense that they have very little control, that the lawyers are in charge. To the extent that, in some circles, lawyers are held in low regard, some of that arises from this phenomenon, that while clients on both sides suffer and pay, lawyers on both sides make good livings.

Unfortunately, from my perspective, most mediation does little to change this fundamental dynamic. In fact, the most popular mediators hope to intensify it. That is, they, too, threaten each side about the costs and risks of litigating onward. By virtue of their experience as judges or litigators, they hope to provide even more credible threats to each side than the opposing lawyers could provide. At the same time, parties are aware that the mediator is doing that to both sides, which diminishes the mediator’s credibility in the eyes of the parties - that is, they understand that the mediator is attempting to push them toward compromise, and that their words are chosen with that purpose in mind, rather than the purpose of providing actual objectivity. The parties and their lawyers understand that in mediation, the game is to persuade the mediator to lean harder on the other side. So the unpleasant litigation dynamic continues or worsens; the lawyers remain in control; and the possibility of a result that seems fair recedes even further (thus, the common statement by mediators that a good settlement is one that both sides are unhappy with).

This approach to mediation is a tradition that has been passed down for decades from judges’ settlement conferences. It does not take into consideration the potential for a meaningful change in how the parties are dealing with each other. The possibility exists, primarily through direct conversation between the parties, for a shift away from that unpleasantly
threatening, carrot and stick way of interacting. It is possible, in a direct conversation, for the parties to regain a sense of control, to communicate to each other more genuinely and less strategically, to see themselves less as victims and the other side less as victimizers, and to do some actual collaboration in a way that benefits both sides and that both sides find more humanizing. A big reason this sort of mediation hasn’t become more popular is that lawyers aren’t comfortable with it. The face to face conversation means the lawyer faces the risk of an awkward moment of being one-upped by opposing counsel in front of one’s own client; it also gives the lawyers a diminished sense of control, as the client may say something inconsistent with the lawyer’s strategy.

Professional mediators rely on referrals from lawyers. So in lieu of providing a process that is meaningful to the clients, they focus on providing a process that lawyers like. There are a variety of ways to make lawyers like a mediation process including (1) show excessive deference to and even praise the lawyer in the client’s presence; (2) help the lawyer avoid awkward moments by protecting the lawyer from any face-to-face interaction with opposing counsel or opposing parties in front of the lawyer’s own client (3) keep the conversation focused on legal arguments, as opposed to clients’ expressions of emotion or discussion of facts that are relevant to the client but may not be legally relevant; (4) get a sense of the result that the lawyer believes is appropriate, even if it’s different from the client’s, and attempt to steer the mediation toward it (5) refer other cases to lawyers that have referred mediation to you.

So part of why mediation generally remains very unpleasant and non-meaningful to clients is the inter-dependent relationship between lawyers and mediators. In a sense, that relationship corrupts the process - not that it causes mediators to favor one side over the other - but in that it causes the mediator to favor both lawyers over the clients. In order for a mediator to provide a process that is truly focused on the clients, the mediator needs not to engage in mutual back-scratching with the lawyers.

For me “You refer the case to me and guarantee my fees, and I’ll make sure you (more than your client) are comfortable with the process” at some level,is the deal that is often being struck between lawyers and mediator.

I prefer not to participate in that deal.

by Dan Simon

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Dan Simon teaches and practices transformative mediation in St. Paul, MN. He also writes the blog at The Institute for the Study of Conflict Transformation.