THE PURIST VIEW OF MEDIATION
LAWYER-MEDIATOR FACILITATION
The presence of lawyer-mediators threatens the purely facilitative mediation process envisioned by the purists in two ways. First, attorneys rarely have the personality and skills necessary to intervene in a purely facilitative manner.
The Lawyer's Standard Philosophical Map
- Analytical Acumen
- Emotional Unintelligence
- Adversarial Orientation
- Summary
In fact, lawyers are considered so rational and analytical that “brain researchers have selected lawyers when they wanted to test a profession that is characteristically analytical in its preferred mode of thinking.”59. They look for flaws and fallacies, excel at criticizing conclusions and identifying what is wrong with something.63 Researchers from the 1960s to the 1990s have found that lawyers are substantially more inclined to the "thinking" orientation than the general population as a whole. .64 In short, lawyers “tend to be more logical, unemotional, rational, and objective”65 than others and place a “great emphasis on logic, thinking, rationality, justice, fairness, rights, and rules.”6 6. Idd; see also Larry Richard, The Lawyer Types, 79 A.B.A. Feelers, on the other hand, prefer to… make decisions using a more personal, subjective and values-based approach.”).
Miller, who administered the MBTI to first-year students from four law schools and a control group of liberal arts students, found that "72% of law students were thinkers" types, while 54% of liberal arts students were thinkers. '" Paul VanR. Larry Richard, in his large survey of practicing lawyers, found that "as many as 81 percent of male lawyers preferred thinking, as did 66 percent of female lawyers." Richard, supra note 63, at 76. Based on epidemiological data only 3-9% of individuals in industrialized countries suffer from depression; prelaw subject group means did not differ from normative expectations. Yet 17-40% of law students and alumni in our study suffered from depression, while 20-40% of the same subjects suffered from other elevated symptoms.") (footnote omitted).
6:145 et seq.8 2 In fact, research "suggests that humanistic, people-oriented individuals do not fare well, psychologically or academically, in law school or in the legal profession."8 3. Id; see also Richard, supra note 63, at 76 ("Feelings have a rough time of it [in the legal profession] . . . The constant adversarial mentality weighs on the feeling, while for the thinker it may represent one of the most stimulating parts of the practice.") . Landwehr speculates that the unusual concentration of lawyers in the fourth stage is a consequence of "legal thinking." Id.
34;[In the research from which Kohlberg derives his theory, women simply do not exist." Id. 34;Kohlberg's six stages describing the development of moral judgment from childhood to adulthood are empirically based on a study of four- eighty-one boys whose development Kohlberg followed for a period of more than twenty years." Id.
The Disputant's Standard Perceptual Map
- Lawyers as Legal Experts
- Lawyers as Gladiators
- Lawyers as Deceivers
- Summ ary
But even if a subset of attorneys is able to mediate in a purely facilitative, non-evaluative manner—and it seems likely that such a subset exists—it is still unlikely that the mediation process will be truly facilitative, because disputants are likely to perceive the facilitation of attorney-mediators acting differently than they perceive them to be. facilitative behavior of non-lawyer mediators. Although we do not have a wealth of empirical evidence on the perceptual map of the disputant, what we know from this evidence and what we can reasonably infer suggests that disputant lawyer-mediators are likely to be seen and heard differently than non-lawyer-mediators. . This, in turn, may cause them to interpret the mitigating comments and questions of lawyer-mediators differently from lawyer-mediators, attributing legal opinions to members of the former group but not to members of the latter.
It is conceivable that disputants' perception of lawyers as gladiators may serve legal mediators well in facilitative mediation. On the other hand, disputants' views of attorney-mediators as gladiators seem likely to undermine attorney-mediators' efforts to mediate in a purely facilitative, non-evaluative manner. Because disputants are likely to view attorney-mediators as domineering, aggressive, and uncaring, disputants may be hesitant to open up to attorney-mediators in the same way that they would open up to psychotherapist-mediators or social worker-mediators.
Perceptions of lawyers as dishonest and unethical by disputing parties cannot possibly help lawyer-mediators in mediation, unless it makes it easier for lawyer-mediators to exceed the failed expectations of disputing parties than non-lawyers.138 It seems much more likely. , but this perception will harm attorney-mediators in mediation. Because disputants are likely to enter mediation with a fairly low opinion of the fairness and ethical standards of attorney-mediators, disputants are more likely to be skeptical of the neutrality and impartiality of attorney-mediators than non-attorney-mediators. There is evidence, for example, that the public believes that judges are more ethical than lawyers, and perhaps lawyer-mediators are viewed more as "judges" than "lawyers."
Mediation Hypothetical
- Introduction
- Opening Statements
- Information Gathering
- Assisted Negotiation
- Summary
With these introductions, the mediators have set very different stages for the remainder of the mediation, because the parties to the discussion—Patty and David—are likely to perceive each of the mediators differently based on their respective professional affiliations. See, e.g., CooLEY, supra note 143, at 16 (noting that in the introductory phase of mediation the mediator, among other things, “establishes control of the process.”). Of course, it is possible that the disputing parties have met the mediator prior to the commencement of the mediation session, in which case they will undoubtedly have formed first impressions of the mediator prior to the mediation session.
Indeed, some proponents of facilitative mediation object to mediators identifying their professional affiliation.152 This reaction to the disclosure of the mediator's professional history suggests that these researchers may share my view that the parties' perceptions of the mediation and mediation process are conflicting. are likely to be colored if they learn that the mediator is a lawyer. Consider the way in which the lawyer-mediator and the non-lawyer-mediator are likely to "hear" Patty's story. The non-lawyer mediator may also have an understanding of the legal claims involved in the dispute, but the non-lawyer mediator, especially if he is a psychotherapist or social worker, is more likely than the lawyer-mediator. attentive to the emotional, immaterial considerations present in the dispute.
The lawyer-mediator will be more likely to ask questions designed to elicit legally relevant information about the dispute, while the non-lawyer mediator will be more likely to ask questions designed to elicit information about all aspects of the dispute, not only those. that are legally relevant. The mediator will likely begin by identifying the issues to be addressed in the mediation. At any stage of the mediation, the lawyer-mediator is more likely than the non-lawyer mediator to withdraw from evaluative behaviors and have difficulty with facilitative behaviors.
The Lawyer-Mediator's Role
And even if a fraction of attorney mediators may maintain facilitative behavior in a fraction of mediations, disputants like Patty and David are likely to perceive attorneys differently than non-attorneys in ways that preclude the process from being a purely facilitative, non-evaluative one. It is of course possible to imagine a mediation where the lawyer mediates in a purely facilitative manner, and disputants perceive the lawyer-mediator's behavior in a purely facilitative manner. Unlike the purists, however, I believe, along with the pluralists, that mediation should be an eclectic process, with different types of mediators available to suit different disputants.17 7 Some mediated disputes require a facilitative approach, and in these disputes, will not -lawyer mediators are likely to be better mediators than lawyer mediators.
Other mediated disputes require a relatively more evaluative approach, and in those disputes, lawyer mediators can use their evaluative skills—including their analytical acuity, emotional detachment, and legal expertise—to great advantage.17 8 According to all odds. - However, most mediated disputes require a combination of facilitative and evaluative approaches, and in those disputes, lawyer mediators and non-lawyer mediators each have unique attributes to offer the disputing parties. I have argued in this article that lawyers operate according to a standard philosophical map that predisposes them to practice law and mediation in an evaluative rather than facilitative manner. Recognizing the value of the lawyer's standard philosophical map, I argue that lawyers should preserve—but enrich—the standard philosophical map.
Second, assuming that lawyers are to enrich the standard philosophical map, is it possible for them to do so? An emotionally disaffected attorney-mediator may fail to develop rapport with litigants, neglect a claimant's emotional damages, ignore emotional tension between litigants, etc. Third, assuming that law schools can influence the standard philosophical map, what should law schools do.
Should Lawyers Adopt a Different
The problem with the lawyer's standard philosophical map is that it serves only as a partial guide. Likewise, the lawyer's standard philosophical map charts a course suited to a two-dimensional world despite the fact that lawyers inhabit a three-dimensional world that requires them to approach problems flexibly. The lawyer's standard philosophical map facilitates the development of the former set of qualities, but lawyers must cultivate something like a "mediator's philosophical map" to help develop the latter set of qualities.
The answer to this question depends on the origins of the lawyer's standard philosophical map. In his seminal 1982 article, Riskin contrasts the standard philosophical map of the lawyer with the philosophical map of a mediator. Unfortunately, the evidence on the origins of the lawyer's standard philosophical map is inconclusive.
Thus, most research on lawyer traits does not identify the source or sources of the lawyer's philosophical standard map. There is some evidence that lawyers have acquired aspects of the lawyer's philosophical card long before they began their formal legal education. I believe that law schools and law professors can enrich the lawyer's philosophical standard card by encouraging law students enrolled in the traditional law school curriculum—especially the first-year curriculum—not only to think like lawyers, but also to feel like lawyers.
