As a J.D. candidate immersed in the world of law, I have been consistently exposed to a variety of legal fields. This exposure has broadened my perspective and shown me the diverse roles an attorney can assume. In particular, mediation is an area where an attorney’s role and responsibilities can change significantly, especially when compared to an area such as traditional litigation.
For instance, in litigation, each party’s attorney has the opportunity to present an opening statement. In litigation, these opening statements often consist of formal legal arguments, compelling narratives, and setting the stage for a potential trial. When delivered effectively, these opening statements can lay the ground work for a persuasive story. This process embodies our American adversarial system, where both sides strive to persuade the judge or jury that their client’s interpretation of the events deserves them a favorable ruling.
However, this approach to opening statements would prove itself futile in meditation. A lawyer’s role as a meditator differs considerably. An adept and effective mediator encourages the parties to communicate openly, and work together towards a mutually beneficial outcome. Unlike in litigation, a mediator’s role is not to decide the case, but to act as a facilitator of the dialogue between the parties. In other words, the attorney’s role is to … mediate.
The skills required for this are significantly distinct from those of an effective litigator. For example, a mediator must remain neutral, impartial, and refrain from taking sides. Whereas a litigator has a duty of “zealous advocacy” for their client’s position.
Because of the necessity to facilitate dialogue between the conflicted parties’ mediators possess heavy discretion on the mediation process. This discretion allows them to adapt their approach for the unique dynamics and complexities of each case. Factors influencing a mediator’s discretion include the nature of the conflict, specific needs of the parties, and their desired outcomes.
This discretion becomes further apparent in the initial stages of mediation, where mediators may take one of several approaches. For instance, one approach is the caucus, wherein the mediator will meet separately with each party to provide confidentiality and better understand each party’s relative positions, concerns, and interests. This safe space enables parties to express themselves freely and openly, while still providing the mediator with insights and the necessary information for them to craft a mutually beneficial outcome.
Alternatively, other circumstances may lead a mediator to start with a joint session. This involves bringing the parties together in the same room to engage in conversation under the mediator’s guidance. These sessions promote direct communication, which can be a double edged sword depending on each party’s disposition towards the other. Making this option not suitable for every type of mediation.
Lastly, in certain scenarios, a mediator may opt for a hybrid approach. This involves a combination of both joint sessions and caucuses. This allows the mediator to act strategically, blending the strengths of each format. Done correctly and a mediator can foster and facilitate a healthy dialogue while still addressing sensitives topics privately. Which of these styles a mediator chooses to adapt hinges on their personal judgment, expertise, and discretion.
In conclusion, a mediator is only one hat attorney can wear, and their ability to navigate paths to mutually beneficial outcomes is a difficult and yet essential skill to our conflict resolution. One which enhances the efficiency and quality of dispute resolution, while still preserving the core underlying relationships.