As part of my role as Communications person for the ADR section of the Dallas Bar Association, I have the privilege of attending monthly section meetings. Yesterday's meeting was fabulous.
Three very prominent attorneys and one former judge were on a panel discussing everything from the value of a joint session, ethical considerations, and mediation tips. I came away with a page full of notes.
Most importantly, to me, was the unanimous viewpoint by all three experienced attorneys that they want a mediator who will evaluate the case and be advocates for settlement. "Evaluate the case and the party's position", "hold people accountable", "help clients understand risks" were phrases that were used.
I know some mediators who agree with this position. I know others who believe the evaluative model is flawed because it takes the mediator out of a truly neutral position. What do you think? Should we do what our "customers" want and desire?
Showing posts with label mediation; attorney. Show all posts
Showing posts with label mediation; attorney. Show all posts
Tuesday, November 10, 2009
Sunday, August 3, 2008
Are too many lawyers mediating?
The answer is yes, according to the Dean of the South Texas College of Law. In an article printed in the Southeast Texas Record, Dean James Alfini suggested that the high number of lawyers acting as mediators is eroding the "core spirit" of the Texas Alternative Dispute Resolution Act.
The Texas ADR Act, according to Dean Alfini, was designed so that parties can talk face to face before a neutral third party to resolve a dispute. With so many lawyers acting as mediators, the parties aren't getting an opportunity to tell their side of the story directly to the other side, according to Dean Alfini. Instead, the attorneys representing the parties are the ones doing the talking and the deal making with the mediator.
It goes without saying that a mediator should not act as a decision-maker. But I've found in a number of circumstances the parties have been so hurt by the other that they don't want to speak to the other side, so the mediation process of using separate caucuses does meet the need of the hurt party--they get to tell their story to a neutral. It's like having their day in court, and that ability to express what happened to a neutral (instead of the other side or their own attorney) can have a tremendously meaningful effect.
We should listen to Dean Alfini, and make sure that the mediation process is focused on the parties, and that the parties are the ones who make the solutions, not the attorneys (or the mediator).
The Texas ADR Act, according to Dean Alfini, was designed so that parties can talk face to face before a neutral third party to resolve a dispute. With so many lawyers acting as mediators, the parties aren't getting an opportunity to tell their side of the story directly to the other side, according to Dean Alfini. Instead, the attorneys representing the parties are the ones doing the talking and the deal making with the mediator.
It goes without saying that a mediator should not act as a decision-maker. But I've found in a number of circumstances the parties have been so hurt by the other that they don't want to speak to the other side, so the mediation process of using separate caucuses does meet the need of the hurt party--they get to tell their story to a neutral. It's like having their day in court, and that ability to express what happened to a neutral (instead of the other side or their own attorney) can have a tremendously meaningful effect.
We should listen to Dean Alfini, and make sure that the mediation process is focused on the parties, and that the parties are the ones who make the solutions, not the attorneys (or the mediator).
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