{"id":434,"date":"2010-01-18T11:19:53","date_gmt":"2010-01-18T15:19:53","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=434"},"modified":"2010-01-18T11:19:53","modified_gmt":"2010-01-18T15:19:53","slug":"do-attorneys-obstruct-mediations","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2010\/01\/do-attorneys-obstruct-mediations\/","title":{"rendered":"Do Attorneys Obstruct Mediations?"},"content":{"rendered":"<p>Victoria Pynchon&#8217;s <a href=\"http:\/\/www.negotiationlawblog.com\/2010\/01\/articles\/mediation\/do-attorneys-get-in-the-way-of-mediator-assisted-negotiations\/?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+SettleItNowNegotiationBlog+%28Settle+It+Now+Negotiation+Blog%29&amp;utm_content=Google+Reader\" target=\"_self\">Settle It Now <\/a>blog is on my daily list, and a recent post brought to our attention <a href=\"http:\/\/www.negotiationlawblog.com\/uploads\/file\/The%20Negative%20Impact%20of%20Attorneys%20on%20Mediation%20Outcomes%20--%20A%20Myth%20or%20a%20Reality.pdf\" target=\"_self\">an interesting study <\/a>on whether, by certain objective standards, attorneys get in the way of mediators&#8217; work.\u00a0\u00a0<!--more--><\/p>\n<p>The study was undertaken by three Canadian professors and appears in the January 2010 issue of the Harvard <em><a href=\"http:\/\/www.pon.harvard.edu\/publications\/negotiation-journal\/\" target=\"_self\">Negotiation Journal<\/a><\/em>.\u00a0 The researchers collected data from parties to mediations conducted by 36 different mediators and used 177 responses (48%) for the basis of their study.\u00a0 The results:<\/p>\n<ul>\n<li>The presence of an attorney had no impact on whether the mediation concluded in a settlement;<\/li>\n<li>Mediations in which attorneys participated did not last significantly longer than ones in which attorneys did not participate;<\/li>\n<li>Parties reported the same perceived fairness of the mediation process,\u00a0and level of satisfaction with the mediation,\u00a0whether or not attorneys participated;<\/li>\n<li>Parties&#8217; confidence that the mediated agreement will be honored was the same whether or not attorneys participated;<\/li>\n<li>When\u00a0attorneys were present, the parties&#8217; assessment of the mediator&#8217;s usefulness was lower; and<\/li>\n<li>The level of reconciliation between the parties was significantly lower when attorneys were present.<\/li>\n<\/ul>\n<p>Pappy always told me that there&#8217;s no arguing with the facts.\u00a0 But as <a href=\"http:\/\/businessconflictmanagement.com\/blog\/2009\/11\/arguing-the-facts\/\" target=\"_self\">I&#8217;ve noted elsewhere<\/a>, that doesn&#8217;t stop others, and these conclusions go to a topic so volitile and so subjective that it&#8217;s worth delving a little bit.\u00a0 As Walt Kelly&#8217;s\u00a0Albert the Alligator\u00a0said:<\/p>\n<p style=\"text-align: center;\"><img decoding=\"async\" src=\"http:\/\/1.bp.blogspot.com\/_WH2yh36c2LM\/SMNalwUA1aI\/AAAAAAAAAPc\/JlLtbk_qLNE\/S180\/pogo.jpg\" alt=\"\" \/><\/p>\n<p>I&#8217;ve seen an unrepresented party assert utterly absurd demands in mediation, and hold on to them as if they were\u00a0entitlements.\u00a0\u00a0She might have saved herself a lot of frustration had competent counsel advised her on what relief the law provides and what relief it doesn&#8217;t.\u00a0 That one didn&#8217;t settle.<\/p>\n<p>On the other hand I&#8217;ve seen attorneys forbid their clients from speaking at all during a mediation.\u00a0 Once, when I asked a client what her thoughts were about ways we could\u00a0end a dispute, her counsel interjected in a very loud voice: &#8220;Her thoughts are exactly what I told you they were and in the future you will direct any questions to me!&#8221;\u00a0 That one didn&#8217;t settle, either.<\/p>\n<p>The <em>Negotiation Journal<\/em> paper studied only employment disputes, only in Quebec, and only\u00a0those conducted through the <a href=\"http:\/\/www.cnt.gouv.qc.ca\/en\/home\/index.html\" target=\"_self\">Commission des Normes du Travail du Qu\u00e9bec<\/a>.\u00a0 American law was not implicated in these disputes, nor were business-to-business disputes.\u00a0 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.\u00a0 I know nothing about social science, but I am a student of consensus decision making.<\/p>\n<p style=\"text-align: center;\"><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter\" src=\"http:\/\/creatorsincubator.files.wordpress.com\/2009\/08\/pogo1qk.jpg\" alt=\"\" width=\"274\" height=\"142\" \/><\/p>\n<p>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\u00a0is different from &#8212; indeed fundamentally inconsistent with &#8212; the business model for companies engaged in a B2B dispute; that attorneys\u00a0tend to see commercial disputes through a legal prism while clients tend to see them through an operational prism; \u00a0that advocates who\u00a0have been\u00a0trained in interest-based\u00a0negotiation are, on the whole, more effective than advocates who\u00a0have not been; and that, in order to avoid distrust in the mediation process,\u00a0mediators\u00a0should assure parties &#8212; early and often &#8212; that their attorneys are competent, trustworthy and\u00a0reliable counsellors.<\/p>\n<p>The study also did not alter my view that,\u00a0in the case of mediation advocates ( just as in the case of\u00a0bakers and roofers), good ones tend to do a better job than bad ones.\u00a0 I wonder whether, as we move forward, we can re-frame the question away from <em>whether attorneys have a negative impact on mediation outcomes<\/em>, and instead direct the inquiry towards <em>whether and how attorneys can use the mediation process to add value to their clients<\/em>.\u00a0<\/p>\n<p>On this, as in all things vital, let&#8217;s not let the facts get in the way of our opinions.<\/p>\n<p style=\"text-align: center;\"><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter\" src=\"http:\/\/www.doug-gray.com\/blog\/Pogo_15_SemiMental_p01.jpg\" alt=\"\" width=\"337\" height=\"390\" \/><\/p>\n<p style=\"text-align: center;\"><a onclick=\"return sl.t('r11',this,20,10,'ImgRes')\" href=\"http:\/\/businessconflictmanagement.com\/blog\/wp-admin\/imageDetails?s_it=imageDetails&amp;q=don%27t+let+the+facts+get+in+the+way+of+research+pogo&amp;img=http%3A%2F%2F3.bp.blogspot.com%2F_hikjq4SSRx4%2FSx6wIHnuwBI%2FAAAAAAAAAwQ%2Fznz3zWI-P6o%2Fs400%2FPogo02%2Bfriends.jpg&amp;site=&amp;host=http%3A%2F%2Fhitchhikinganimals.blogspot.com%2F&amp;width=124&amp;height=109&amp;thumbUrl=http%3A%2F%2Fimages-partners-tbn.google.com%2Fimages%3Fq%3Dtbn%3AWn-XXSjwc96XDM%3A3.bp.blogspot.com%2F_hikjq4SSRx4%2FSx6wIHnuwBI%2FAAAAAAAAAwQ%2Fznz3zWI-P6o%2Fs400%2FPogo02%252Bfriends.jpg&amp;b=image%3Fq%3Ddon%27t%2520let%2520the%2520facts%2520get%2520in%2520the%2520way%2520of%2520research%2520pogo%26oreq%3D600ea50583274f598a7e398c914608ec&amp;imgHeight=351&amp;imgWidth=400&amp;imgTitle=%3Cb%3EPogo%3C%2Fb%3E+and+his+gang+%3Cb%3Eof%3C%2Fb%3E&amp;imgSize=33906&amp;hostName=hitchhikinganimals.blogspot.com\"><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>A recent Canadian study tries to measure the extent to which attorneys obstruct mediations.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-434","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/434","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=434"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/434\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=434"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=434"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}