Are Lawyers “Hijacking” Mediation and Arbitration?

Having recently left the practice of law to devote my time exclusively to mediation and arbitration (with some teaching and writing on the side), I was intrigued when my ADR friend and colleague Colm Brannigan posted a link to a recent LinkedIn blog that asks: “Have Lawyers Hijacked the Promise of Mediation?”

Author Max Kimber, an Australian mediator and barrister, says it’s time to re-visit the the role of lawyers in mediation, both as representatives of the parties in that process and as mediators.

The same may be said of arbitration, I think.

Kimber talks about the “promise of mediation” being a process that helps the parties themselves better understand the root causes of their conflicts, communicate more effectively, and prevent the escalation of healthy disputes into unhealthy conflict.

There are many different models of mediation, of course. Some are more transformative, others purely facilitative and others highly evaluative. But all are supposed to value the principles of party autonomy and responsibility for resolving the dispute.

The problem, Kimber says, is that legal training emphasises “rights” and the idea that justice is achieved through adversarial advocacy. I think that’s changing, but it’s true that this is the approach that lawyers feel most comfortable with even when representing clients in mediation or arbitration.

As Mark Twain said: “To a man with a hammer, everything looks like a nail.”

As a result, both mediation and arbitration, originally held out as alternatives to traditional legal processes, are becoming increasingly legal process driven.

Kimber also notes that clients go to lawyers only when they have a problem or dispute they can’t solve themselves. The go to the lawyer for an answer; an advocate to fight on their behalf. Clients don’t go looking for someone who will act as a coach or advisor to help them solve the problem themselves.

“You don’t keep a dog and bark yourself.”

As a result, many (most?) parties are quite happy to take a back seat and let their lawyers speak for them in mediation, or decide what strategies and tactics to use in arbitration. And the natural tendency of lawyers, it seems, is to make mediation more adversarial and to make arbitration more procedural.

But I don’t want to take this argument too far. I’ve acted as a sole arbitrator in many consumer cases over the years, cases where most of the parties – on both sides – are self-represented. I’ve seen the traps people can fall into if they don’t have legal advice.

They fail to make obvious arguments because they don’t appreciate the significance of either the facts of the situation or basic legal principles. Or they make completely irrelevant arguments. Worst of all, they may actually argue the other party’s case for them.

So lawyers are valuable and necessary advisors in any dispute. However, they must guard against the danger of “hijacking” the mediation or arbitration process, no matter how well-intentioned.

Kimber refers to legal scholarship going back almost 20 years that identified the idea of lawyers hijacking the mediation process in court connected ADR. (Citing Deborah Hensler, “A Research Agenda: What We Need To Know About Court Connected ADR”, Disp. Resol. Mag., Fall 1999 and Nancy Welsh, “Making Deals in Court – Connected Mediation: What’s Justice Got To Do With It?” (2001) Vol. 79, Washington University Law Quarterly 787)

Those authors observed that the facilitative and transformative models of mediation that arose and grew in the 1970s and 1980s emphasised face-to-face meetings and active communication between the parties. They did all the talking, with the help of the mediator. Lawyers stayed in the background, if they were in the picture at all.

Parties were encouraged to use active listening, reflecting and acknowledging each other’s interests. Mediators reframed, probed for parties’ underlying issues and concerns, translated positions into interests and encouraged the parties to generate options for settlement and work collaboratively to select alternatives which appeared acceptable to them – all the techniques pioneered by the Harvard Negotiation and Mediation Program and still taught today.

But in practice, much mediation, especially commercial mediation, is done through “shuttle” meetings. The parties may never meet in person. The lawyers do most – or all – the talking. All communication is through the mediator – who is also lawyer by training.

When the parties do meet directly, most of the time is still spent with the lawyers talking – to each other and to the mediator. The discussion is very much rights-based. Unless the mediator intervenes, little time is spent talking about the parties’ business interests or exploring options for settlement that aren’t already on the table.

This kind of mediation is highly evaluative and result-oriented. It is focussed entirely on a limited range of settlement options to resolve a specific dispute. It does not consider the broader relationship between the parties (if there is one) or the potential for future conflicts.

Similarly, in arbitration, lawyers may devote as much – or more – time and energy to procedural wrangling as to the merits of the case. Some of it is necessary and important, to ensure that the case gets a fair hearing. But much, perhaps, is just lawyers doing what lawyers do.

Kimber isn’t the only writer to have commented on the legal hijacking of dispute resolution.

As far back as 10 years ago, delegates to the annual meeting of the International Institute for Conflict Prevention & Resolution (CPR) were complaining that, in the United States at least, “trial lawyers have hijacked arbitration.” One former general counsel was quoted as saying: “Most general counsel today would tell you arbitration is the lesser of two evils – not as bad as litigation, but still pretty unsatisfactory.” The problem has only become worse in the past decade.

I’ve spoken and written before on what we need to do as lawyers and arbitrators to resist the tendency for arbitration to not simply become private litigation, with all the attendant costs and delays. The key, I think, is to recognize that arbitration serves a different purpose. Parties choose arbitration instead of litigation. They do that for a wide variety of reasons, but they should not have that choice frustrated by arbitrators or lawyers who intentionally or inadvertently hijack the process.

If Kimber and others have correctly diagnosed the problem, and I think they have, what is the cure?

One option to consider is to have separate settlement counsel, or mediation counsel, whose sole mandate is to attempt to settle on the best terms possible. If their mandate is clear, perhaps they can avoid some of the mind traps that lead litigators to “hijack” the mediation process.

If the nature or size of the dispute will not support separate counsel, then lawyers need to be able to shift their own thinking from an adversarial mindset to one that is more collaborative, in order to make mediation more effective. And, if they are engaged in arbitration, they need to forget about the rules of civil procedure and the motion strategies they use in litigation and focus on winning the case on the merits in a timely and efficient way.

We may also want to rethink what we look for in mediators and arbitrators.

I think parties want mediators who are natural facilitators with experience in the subject of the dispute. Mediators who get what the conflict is about and can help find a way to solve it.

And maybe parties simply want arbitrators who will fairly make a decision based on the facts of the dispute and and the law, without all of the litigation bells and whistles.

Of course, parties in a dispute want to win. But at what cost?

And wanting to win is much different from being afraid to lose. Maybe fear of losing is what’s really driving the tendency of lawyers to hijack mediation and arbitration.

We need to remind ourselves, I think, that dispute resolution is not just about winning and losing. It’s about giving people choices and options for solving very real problems.