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.

In the public sector today it seems “compromise” is a dirty word. Especially in the politcal arena where the choice of compromise seems to be perceived by some as a form of surrender or weakness to be penalized in the next election cycle. By contrast, candidates who appear to hold positions staunchly seem to be rewarded.

As a mediator, I routinely deal with individuals who resist compromise. They perceive it as a loss as in that they would get less than what they had been demanding or feel they deserve.

I am reminded of an example developed by Mary Parker Follett, perhaps the nation’s first woman management consultant. Her example, which is often cited but without attribution, goes like this:

Assume two sisters are arguing over an orange.  When I ask classes how they would resolve that argument, almost everyone says “cut it in half.”

It’s easy to see in her example that a compromise only gives each party less than what they had wanted. But in her example, to resolve the argument you ask each sister why they want the orange. You then learn that one sister wants the peel for seasoning for a cake and the other sister wants the pulp for juice. In what is known as collaboration, one sister gets the peel and one gets the pulp and they are both completely satisfied.

True collaboration requires that parties who have an objection be open and honest with one another. But there is another variable: timing. In the United States we tend to want to see conflicts as resolvable once and for all time. Other cultures are more likely to understand conflicts as more of an ongoing cycle in an ongoing relationship and that the most important factor is the maintenance of the relationship.

Professor H. W. Brands who teaches as the University of Texas at Austin is the author of Heirs of the Founders: The Epic Rivalry of Henry Clay, John Calhoun and Daniel Webster. According to Professor Brands, Henry Clay became known as “The Great Compromiser” by resolving several serious national disputes. In 1850 California applied for admission to the Union as a free state. Southerners objected as that would tip the Senate against the South. Clay’s compromise was to offer a sterner fugitive slave law that would criminalize the Northern practice of assisting fleeing slaves. Both sides of the dispute attacked Clay but his strong belief was that any one dispute should not be allowed to destroy the union of the states because, given time, that one dispute may become less important and more manageable. He believed the relationship between disputing parties was most important and no single conflict should destroy that relationship.

In any dispute from business to neighbors, that same philosophy can be applied. Which is more important: the relationship between the parties or winning on one conflict issue? Of course, there are conflicts that are so serious as to call into question the viability of the relationship. But for most conflicts, the desire to maintain the relationship is most important. Given that, a mediator can help the parties develop creative collaborative solutions that deal with the issue at hand and strengthen the relationship.