Academic journal article The Review of Litigation

No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators

Academic journal article The Review of Litigation

No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators

Article excerpt

I. INTRODUCTION

Recently, an older friend of mine expressed an interest in becoming a mediator. At the time, she had no formal background in law and possessed an undergraduate degree in French. As a result, I wondered about her potential effectiveness as a mediator. A part of me thought that even if she were given the appropriate training to mediate disputes, she would be at a significant disadvantage compared to mediators who possessed legal training in addition to mediation training. However, I then began to think about her relaxed and confident demeanor, her various experiences during a twenty-five year career as a high school teacher, and the mediation in which she participated several years ago after her ex-husband filed for divorce. I concluded that her lack of a law degree did not matter, and that if she were given appropriate mediation training she would make an excellent mediator.

Many people, including mediation experts, would question my conclusions. They would likely point to my friend's lack of legal training and contend that such non-lawyer mediators are severely limited in their ability to successfully mediate disputes because they cannot accurately assess the strengths and weaknesses of each party's case should the dispute go to trial. Moreover, even if non-lawyer mediators believe that they can analyze the legal positions of the parties, they are forbidden from offering such views because only licensed attorneys may do so. If a non-lawyer mediator were to evaluate the likely outcome of a potential case and voice his or her opinion, it would constitute legal advice and, as such, the unauthorized practice of law. A number of mediation experts believe that this evaluative technique is an indispensable part of successful mediation, and, because they cannot employ this technique, non-lawyer mediators cannot effectively mediate.1 Some experts even go a step farther and maintain that a central requirement for certifying and licensing mediators should be a law degree. Consequently, these experts believe that non-lawyers should not mediate.

This article argues the contrary. It asserts that not only should non-lawyers be permitted to mediate disputes, but that non-lawyers bring to the mediation process their own strengths and attributes, many of which are not possessed by lawyer mediators. As such, the article contends that not only is possession of a law degree unnecessary for effective mediation, but also that limiting mediation to lawyers and retired judges significantly hurts the entire mediation process and negatively impacts the people that mediation intends to help-the parties. Part II explains the mediation process, describing its purpose, the role of the mediator, the necessary qualifications to act as a mediator, and the three main styles of mediation: facilitative, transformative, and evaluative. Part III examines the central challenges to and criticisms of non-lawyers acting as mediators. Conversely, Part IV describes the skills and attributes of non-lawyer mediators as well as the important contribution they have made and continue to make to the field of mediation. Finally, Part V outlines additional reasons, apart from the many attributes and contributions of non-lawyers, why it would be a mistake for the burgeoning mediation profession to exclude non-lawyer mediators from its ranks.

II. OVERVIEW OF THE MEDIATION PROCESS

In order to determine which characteristics and attributes make an effective mediator it is imperative to be familiar with the overall process of mediation. Similarly, it is important to understand the role of the mediator as well as what qualifications, if any, a mediator must possess in order to mediate. Lastly, it is helpful to recognize and comprehend the three styles of mediation-facilitative, transformative, and evaluative-and how the style each mediator uses impacts and alters the mediation process.

A. Definition and Goals of Mediation

Mediation is the process by which an impartial third party-a mediator-attempts to settle a dispute by aiding the communication between the conflicting parties. …

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