Written by Louis Marlin from JAMS and originally appearing on the JD Supra Business Advisor.
October 12 kicked off the 2015 ABA Mediation Week. This year’s theme is “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” Lawyers and mediators understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better and by finding ways to get their important interests met while staying true to their values and belief systems.
Following is an interesting perspective that touches on that subject.
Attorneys benefit from a unique educational experience that trains us to look at problems and challenges from all sides. We learn to think like lawyers, being able to examine issues dispassionately, seeking to find solutions for the benefit of our clients no matter what side of a dispute we are on. In fact, when representing a client, we frequently try and consider what the opposition would do to defeat us as a method of planning our strategy.
However, in the world of litigation, this broader “two-sided” view of issues and disputes, while helpful, is frequently only one tool used by attorneys. Litigators are, by definition, advocates, and when it comes to trials, mediations and arbitrations, their job is to steer the proceeding or discussion to a view of the dispute that puts their client in the most favorable light possible.
Importantly, the ability to view both sides of an issue returns to the fore when a lawyer moves from the position of advocate to becoming a “neutral” – as a judicial officer, arbitrator or mediator. Making this transition – moving back to the mindset of taking a holistic view of a problem – requires a conscious effort to shed the sword of advocacy for the cloak of neutrality. Neutrality after years of advocacy means accepting the challenge of taking a fresh look at issues that are presented and disputes which require resolution.
The task is not a simple one. It requires the effort of distinguishing between the knowledge one has on a subject from the bias one may have for one side or the other. Having recently undertaken this transition myself, I have found the following considerations to be helpful in this process:
- Read the mediation or arbitration briefs carefully. Serving as a neutral in connection with a dispute involving an area of law with which the neutral is very familiar invites “skimming” the briefs. This can easily result in having the neutral’s bias creep into the proceedings.
- Ask questions. If a party’s position or argument is unclear, it is the neutral’s obligation to seek clarification. In mediations, both sides are entitled to the neutral’s full and complete understanding of their respective positions.
- Limit your decision. In regard to trials and arbitrations, a neutral’s decision should be crafted to fall within the four corners of the dispute presented, and no further.
- Know your role. While a neutral may well serve the role of trier of fact in an arbitration or trial, that role is much different in a mediation. The neutral must keep foremost in his/her mind that the role of a mediator is to help move the parties to a mutually acceptable resolution, and that taking a hard and fast position for one side or the other will ultimately result in a lack of credibility that will hamper the neutral’s effectiveness.
Actively working to prevent bias from impacting decisions and actions is the key to transitioning from attorney to credible and effective neutral.