SOME OF MY BEST FRIENDS ARE LAWYERS
Where are the lawyers with mediation skills?
Law school accreditation standards include alternative dispute resolution in their skills curriculum. By 1986, a majority of American Bar Association approved law schools began providing courses or clinics on alternative dispute resolution. And some law schools added comprehensive programs in negotiation, arbitration and mediation.
What statistics do not reveal is the style of mediation students in law school experience. For example, the Evaluative Style of mediation became commonly used in the 1980s primarily for court-ordered and court-referred mediations. The evaluative mediator points out strengths and weaknesses of each sides’ positions, which might rely on past experience with the law and may share opinions or make recommendations as to what might happen if the case is returned to court.
In contrast to the Evaluative Style, the Facilitative Style became commonly used in community mediation centers in the 1960s and 1970s. A facilitative mediator is impartial and does not give advice, share opinions nor make recommendations. The facilitative mediator assists the disputing parties to find and analyze options for a mutually agreed upon solution by asking questions, providing summaries and developing interests behind demands each party makes. Facilitative mediation has been most successful for on-going disputes among families, neighbors and consumer-merchants.
Most attorneys feel more comfortable with evaluative mediation. This difference is dramatically and humorously illustrated in an article by Allison Peryea, a 2007 graduate of the University of Washington School of Law. Ms. Peryea signed up for a one-week mediation training session expecting it to be a typical continuing legal education class where people sit and listen. Instead she found it to be participative.
She learned about facilitative mediation and found that to be in contrast to her past experience as an attorney telling people what their issues are, what information is important, what the options are and what would be a good result. After years of telling people what to think, she found it a challenge to let people discover their own solutions.
Her first thought was that facilitative mediation was not very time efficient. In time she came to appreciate that in facilitative mediation it is only the participants who really know what they want. And she also learned that in facilitative mediation the participants can come up with creative solutions she would not have considered herself.
Ms. Peryea concluded that attorneys would find facilitative mediation training worth the time to become engaged in a new way of thinking and learning how to see situations from different perspectives.
I couldn’t agree more. That’s what my best attorney friends do.