Victoria Pynchon’s Settle It Now blog is on my daily list, and a recent post brought to our attention an interesting study on whether, by certain objective standards, attorneys get in the way of mediators’ work.  

The study was undertaken by three Canadian professors and appears in the January 2010 issue of the Harvard Negotiation Journal.  The researchers collected data from parties to mediations conducted by 36 different mediators and used 177 responses (48%) for the basis of their study.  The results:

  • The presence of an attorney had no impact on whether the mediation concluded in a settlement;
  • Mediations in which attorneys participated did not last significantly longer than ones in which attorneys did not participate;
  • Parties reported the same perceived fairness of the mediation process, and level of satisfaction with the mediation, whether or not attorneys participated;
  • Parties’ confidence that the mediated agreement will be honored was the same whether or not attorneys participated;
  • When attorneys were present, the parties’ assessment of the mediator’s usefulness was lower; and
  • The level of reconciliation between the parties was significantly lower when attorneys were present.

Pappy always told me that there’s no arguing with the facts.  But as I’ve noted elsewhere, that doesn’t stop others, and these conclusions go to a topic so volitile and so subjective that it’s worth delving a little bit.  As Walt Kelly’s Albert the Alligator said:

 

I’ve seen an unrepresented party assert utterly absurd demands in mediation, and hold on to them as if they were entitlements.  She might have saved herself a lot of frustration had competent counsel advised her on what relief the law provides and what relief it doesn’t.  That one didn’t settle.

On the other hand I’ve seen attorneys forbid their clients from speaking at all during a mediation.  Once, when I asked a client what her thoughts were about ways we could end a dispute, her counsel interjected in a very loud voice: “Her thoughts are exactly what I told you they were and in the future you will direct any questions to me!”  That one didn’t settle, either.

The Negotiation Journal paper studied only employment disputes, only in Quebec, and only those conducted through the Commission des Normes du Travail du Québec.  American law was not implicated in these disputes, nor were business-to-business disputes.  Moreover (though the researchers seem to conclude this variant is insignificant) five times as many mediations in the study took place without counsel as those that took place with attorneys present.  I know nothing about social science, but I am a student of consensus decision making.

 

The study did not disabuse me of certain views I hold, drawn from experience: that the business model for private attorneys who charge by the hour is different from — indeed fundamentally inconsistent with — the business model for companies engaged in a B2B dispute; that attorneys tend to see commercial disputes through a legal prism while clients tend to see them through an operational prism;  that advocates who have been trained in interest-based negotiation are, on the whole, more effective than advocates who have not been; and that, in order to avoid distrust in the mediation process, mediators should assure parties — early and often — that their attorneys are competent, trustworthy and reliable counsellors.

The study also did not alter my view that, in the case of mediation advocates ( just as in the case of bakers and roofers), good ones tend to do a better job than bad ones.  I wonder whether, as we move forward, we can re-frame the question away from whether attorneys have a negative impact on mediation outcomes, and instead direct the inquiry towards whether and how attorneys can use the mediation process to add value to their clients

On this, as in all things vital, let’s not let the facts get in the way of our opinions.

 

F. Peter Phillips is an arbitrator and mediator practicing through Business Conflict Management in Montclair, New Jersey. He is also the Director of the Alternative Dispute Resolution Skills Program at New York Law School where, as Adjunct Professor, he teaches Alternative Dispute Resolution, Negotiation, and International Commercial Dispute Resolution.