One of the questions I get from acquaintances going to mediation for the first time is whether they should take their attorney with them to the session. To answer their question, I typically go over several considerations, including mediation ethics, expert consultation and cost.

First and foremost, the ethical standards for mediators require that they conduct mediation based on the principle of self-determination. That is, the mediator must assure that it is the parties themselves who are making the decisions. If such assurance can be bet, then it doesn’t matter if a family member or an attorney or any other advisor accompanies the disputant. This means that the parties must be able to consult with professionals that may be attorneys or accountants or other advisors.

So should such disputants bring their attorney or accountant with them to the mediation? That introduces the consideration of cost. Fortunately, cell phones make consultation during the mediation cost effective. By advance preparation, a disputants can arrange to call their advisors when and if needed during the session.

Meeting with an attorney or other advisor in advance of the mediation can be very helpful. The attorney can assist the disputant develop a better understanding of the issues and possible solutions. A recent trend is the preparation of a mediation briefs, which is an informal document designed to present factual evidence and legal theories that support the party’s case. These are not designed to persuade the neutral mediator to side with the party’s position. To me, as a mediator, the real value is how the briefs can help the disputant be more organized and have a realistic understanding of their case and possible outcomes. Again, as a mediator, I do not allow myself to be influenced in any way by the document, as I am not the decision maker. The parties themselves are.

A recent article in the Los Angeles Times reveals that in California civil courts at least three-quarters of cases have at least one party who is representing themselves. In response, the courts have expanded their efforts to help self-represented litigants. In the article, one person pointed out that financial resources are not always the explanation. For example, young adults are accustomed to learning skills from YouTube and other online sources.

So, my answer is usually, “No, you don’t need to bring your attorney with you to the mediation because you will be making the decision, but you definitely do need to be able to access professional advisors as you may need their advice to make the best decision.”

What has become known as the dual concern model of conflict management was originally developed in the 1960s. The two that were identified were concern for self and concern for others. These described a person’s style of conflict management in terms of a high concern for one’s self and a low concern for the other. This was later refined in the 1970s to identify five styles of conflict management:

1.) conflict avoidance (low concern for self and for others)

2.) competition (high concern for self and low concern for others)

3.) accommodation (high concern for others and low concern for self)

4.) compromise (some degree of concern both for self and others);

5.) collaboration (high concern for self and for others).

An understanding of the dual concern model of conflict management can guide mediators or others helping individuals in conflict.

It’s long been understood that we only get into what is considered realistic conflict with those whom we have a relationship. An example of a non-realistic conflict is road rage. The parties do not know each other and have no relationship as individuals. Conflict between people who are in a relationship can vary depending on the importance of their conenction. A conflict between a consumer and a merchant does have a relationship dimension, but it is usually a weak relationship since the consumer can easily go elsewhere and the merchant can attract new customers. A conflict between business partners or between family members can be much more intense as the relationship is perceived to be special and not easily replaced. In fact, it is recognized that our most intense conflicts are with the people we care about the most.

How is this important to mediators? If the conflict is between parties with a weak and easily replaceable relationship, if the parties want to work toward a settlement they will typically move to trying to find a compromise solution. Probably neither party got everything they wanted, but they didn’t lose everything either. That’s acceptable to most people as a way to resolve the issues and move on.

The weakness of compromise as a dispute resolution strategy was long ago illustrated by Mary Parker Follett, an early, leading management consultant and the first woman to address the London School of Economics. Her example was simple: Assume you have two sisters fighting over an orange. The simple compromise solution is to cut it in half. But she points out a better way is to ask each sister why she wants the orange. One says she wants the rind for flavoring a cake; the other says she wants the pulp for its juice. In this case, the collaborative solution is simply to give one sister the rind and the other sister the pulp. They both come out total winners. Follett was an advocate for what became commonly known as collaboration.

In mediation, then, when the parties are in a long-term, strong relationship, a compromise solution may not be the most desirable one. Rather, it could repair and strengthen their relationship to help the parties find a collaborative solution so that both parties are satisfied. Collaboration results in a high degree of concern for both one’s self and the other party.

Parties in long term, important relationships range from neighbor-neighbor disputes to family squabbles to small business disagreements. As I tell my students, collaborative solutions are not always easy, but the benefits can be worth the effort.