Conflict Resolution

Do Attorneys Obstruct Mediations?

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.

1 Comment
  1. My mediation practice focuses on construction disputes where the parties are primarily interested in resolution based on getting on with business settlements, rather than strictly pursuing a legal argument. I’ve had clients insist that attorneys be excluded from the discussions.
    With this in mind I preface my mediator introduction with the statement that mediation is not by its nature a legal ruled process. That is, it is not adversarial and rules of evidence or swearing in of witnesses is not required. I request that executive decision makers speak directly to each other in joint session, followed by their attorney according to their wishes. In preparation for the mediation session I have sometimes called a party directly, without attorney present, to clarify a matter that may have become muddied in the black or white speak of a factual position painted by their attorney.
    During a recent mediation I found it necessary to ask both opposing attorneys to leave, so that I could speak directly with the principals in order to encourage them to step back sufficiently to agree on an acceptable settlement framework. They then proceeded to direct the attorneys to modify the draft settlement agreement accordingly.
    Notwithstanding the above actions, I have also found many attorneys to be well informed and supportive of the mediation process, which can often produce a mutual settlement with rebuilt bridges for possible future work opportunities.

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