John Lande
This article has been republished and adapted with permission. The original publication can be located within Indisputably.
Posting my short article, The Important Role of Attorneys in Promoting Parties’ Self-Determination in Mediation, on the NYC-DR listserv prompted several reactions. This post highlights and elaborates some points in my article.
Why Law School Faculty Should Increase Instruction in Mediation Representation
I’m a retired law professor who mediated and taught mediation for years. The main purpose of my article was to encourage law school faculty who teach mediation to increase their instruction about how attorneys can promote good decision-making by representing clients in mediation. About 90% of law school mediation instruction in the US focuses on the neutral role, with relatively little instruction in mediation representation.
Many faculty want to encourage their graduates to promote self-determination, and they focus on the mediators’ role in doing so. There are significant limits on mediators’ capabilities to do this. Attorneys actually are in a much better position to help clients make good decisions in mediation sessions by carefully preparing them before mediation sessions.
Unfortunately, many attorneys don’t do a good job of preparing their clients for mediation sessions. That’s one reason why faculty should teach students how to do it well. This also would prepare them for the NextGen bar exam in the US (which will include questions about client management and dispute resolution skills) and to represent clients after graduation. New graduates are much more likely to represent clients in mediation than to serve as mediators.
How Preparation Promotes Self-Determination
For many parties, mediation sessions are very stressful. They are in the middle of an unresolved conflict, and they don’t know how the process or outcome will turn out. They may experience strong emotions, possibly aggravated by hostile reactions from the other side (who might be represented by a scary attorney). They may not be sure whether the mediator will help them. And they may be forced to respond to the mediator and other side under time pressure. So mediation sessions may be challenging environments for parties to make decisions.
Parties may have an especially hard time making decisions during mediation sessions if they have not prepared carefully before the sessions. Pre-session preparation is critically important as it can help parties empower themselves.
Some mediators can’t or don’t do much to help parties prepare before mediation sessions. My article, How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?, suggests things that courts and mediators can do, and it includes links to lots of resources. Parties represent themselves in many mediations, and that article includes suggestions to help self-represented parties.
Mediators should do whatever they appropriately can to help parties prepare. Even when they do encourage preparation, however, there are significant limits to the assistance they can provide because of their neutral role. Mediators typically do not provide advice that parties need before and during mediation sessions.
Attorneys are particularly well positioned to help their clients prepare for mediation sessions in legal cases. Attorneys can engage clients to make choices about dispute resolution processes (if they have a choice), obtain and exchange relevant information with their counterparts and the mediator, educate clients about the applicable law, provide legal advice, explain how the mediation process would work in their case, help them identify and prioritize their goals, anticipate the counterparts’ perspectives and tactics, consider the likely outcomes if the parties do not reach agreement, and plan possible mediation strategies.
When parties are well prepared before mediation sessions, they can participate as effectively as possible from the start of the sessions. Such parties are in a much better position than when the only efforts to promote self-determination occur when mediators do so during mediation sessions.
Realistically Promoting Self-Determination
Standard I.A of the Model Standards of Conduct for Mediators defines self-determination as follows: “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
Making “free” choices is an admirable ideal. What does it mean in practice?
My article noted that there are many factors that can limit parties’ decision-making freedom, including many they aren’t even aware of. Indeed, mediators generally have limited knowledge about what affects parties’ decisions.
So I suggested how we might practically operationalize this ideal. Mediators and attorneys can help parties become knowledgeable, confident, and assertive, with the goal of making the best possible decisions under their circumstances. I think that this is the best we realistically can do to fulfill the goal of self-determination.
Choosing Our Language
In our field, we use many vague terms that feel good, like self-determination. Unfortunately, many of these terms are opaque, so people can attach many different meanings to them and misunderstand each other.
In my article Oxymorons R Us, I suggested that we should communicate so that people actually do understand what we mean – especially people who are not in our field, like parties.
Some readers like our traditional concepts and want to continue using them. I hope to prompt people to reflect on the concepts they prefer and to consider whether other concepts would be more useful.
Author Biography
John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.
The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).
John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.
The Australian Dispute Resolution Research Network 
Thank you for an interesting conversation starter.
I am conscious that Field and Boulle have described self-determination as a defining feature of mediation and dispute resolution (and I move from the doctrinal purity and orthodoxy of “mediation” as a purely facilitative process as I feel that such facilitative models have limited utility (if any) in lawyer assisted dispute resolution and prefer a more Fanonist “by any means necessary” approach). However, I have long thought that in legally assisted mediation there are, and must be, real limits on self-determination.
I make this potentially blasphemous and controversial statement for a number of reasons.
Firstly, if parties are negotiating “in the shadow of the law“, then that shadow must cool and inform the degree to which parties are entirely free to choose. By this I mean that whilst parties are free to agree to any arrangements, they mutually desire (taken to its logical extreme, if they wish to liquidate all their property and make alms for the poor and live a life of pious poverty and devotion to god, that is their business). But they are unlikely to be attending a lawyer assisted mediation if that were their mutual goal.
If parties have been advised by lawyers and are represented by lawyers in a dispute resolution process then, realistically, their expectations of outcome and negotiating style will be reflective of their legal advice and inherently “legalistic”. By this, I mean that they will want to negotiate an outcome that falls within the parameters of their advice (ie between the best and worst they have been advised to expect from a court outcome).
In an earlier post, focus was appropriately drawn to the need to focus on positives and not just negatives of court. Indeed, whilst court is a great reality tester (time and money spent) it is also, within our common law legal system, a very useful and positive tool in that outcomes are determined by courts applying tolerably clear legal principles to the facts of the case to produce an outcome. And consistent with the determination of disputes within these legalistic parameters, the outcome is, within a range of usually no more than 10% of so, predicatable.
This approach can be used as a tool to have a conversation, with the input of lawyers as the advisors to the parties, as to what the relevant legal principles are and how they will be applied and, hence, what outcome can be expected if the matter is not settled and instead litigated.
Secondly, lawyers (whilst not the decision makers in a legally assisted dispute resolution process) are bound by ethical obligations (whether common law of the Uniform conduct rules). This includes an obligation to not advance a submission unless it is supported by evidence and reasonably capable of successful prosecution. Thus, engaging with the likely range of outcomes, as it almost universally referred to, is, I would argue, not only a useful but necessary part of the process. To facilitate negotiation outside of those parameters (which, I find in practice, is commonly agreed irrespective of the opening proposals of the parties) creates potential if not real ethical difficulties. This is emphasised if the matter is already before the court as the parties could not appropriately move the court for relief that they know they cannot obtain.
Thirdly, a principled negotiation must, one would think, involve an informed discussion of proposals and not mere horse-trading of numbers (sometimes, it would seem, plucked from the air). Hence, in a lawyer assisted dispute resolution process, the parties should be expected to engage in a discourse as to not only their needs and wants but how they might persuade each other and, if unsuccessful, the court, in obtaining a desired outcome). This must, in a lawyer assisted negotiation, require, consistent with the above ethical obligations, the advance of principled and reasoned positions based on their legal advice and which must, in a common law system, recognise, embrace and align with legal principle.
The above limits on self-determination are, to my mind, reasonable, appropriate and necessary. This is in contradistinction to a comment made to me during a mediation by an experienced accredited specialist representing one party “This is family law. There are no rules. It’s the Wild West”. Or perhaps such attitudes and comments are emblematic of the fundamental problems that plague the family law jurisdiction.
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