Speaking recently with a lawyer friend about the way that mediation is impacting the traditional justice mechanisms, I was happy to observe more openness towards ADR than the usual “allergy to it”, yet the honest reply included “[…] unfortunately, not only lawyers can provide mediation services, and this will hurt the quality”. Of course, this has prompted a discussion about good mediation skills and what a good mediator is really supposed to do.
I observed that my friend’s perception about the role of the mediator is fundamentally related to legal knowledge and advice. According to this perception, a mediation can only be good if the mediator knows the law, and is experienced with the practice of legal profession. This would allow an honest legal opinion and ideas that may help the parties to move forward. It is without doubt that otherwise, a good mediator wouldn’t have much to offer, according to my lawyer friend.
We had a nice chat about the fact that mediation and the mediators have so much more to offer, and that the mediator’s ability to weigh the facts according to the law is not what good mediators are bringing in the mediation room to support the parties and their conversations. If the mediators do have this kind of legal expertise, it is difficult to provide advice on the law, even when asked, and to remain impartial, moreover if the parties are assisted by their legal advisors who are specifically mandated to provide legal advice.
Therefore, we have discussed and agreed that a good mediator needs a different set of skills to create a safe space for a conversation where parties can understand and explore issues and options in a way that is beneficial to everyone. This understanding doesn’t come natural, at least in some cultures, and needs to be supported through education and practice.
This post is not about the knowledge and skills necessary for a competent mediator, it is rather about the dimension to the confusion between good mediation skills and legal knowledge in different places around the world, and about how can it be addressed more effectively. A sustainable implementation of mediation in different cultures depends on the basic understanding of what mediation really is, and before raising the level too much, the DR field may want to keep it simple and clarify the basic assumptions about our field.
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As a non-lawyer but very experienced/active mediator, of course I agree with Adi’s response to the self-serving comment of his lawyer friend that non-lawyer mediators hurt the quality of mediations! Both lawyer and non-lawyer mediators can acquire and practice effective mediation which requires non-legal communication and facilitation skills.
Adi also appropriately comments that the role of legal representatives at the table is distinctly different from the role of the mediator.
Alan, thank you very much for your comment. What I’d like to underline is that the parties need to make informed decisions and having their lawyers in the mediation room can benefit the process significantly. Then, of course, we can discuss mediation advocacy.
I concur that practicing meditation promotes a lawyer’s focus, well-being, and mental acuity, which is a reality. A lawyer who practices meditation claims to have more energy and stamina, which improves their personal performance in court. Thank you very much for sharing this insightful information; it will help me become a better lawyer.
Thank you very much for your great points.