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Monday, May 19, 2014

Communication Breakdown: A Mediation Clinic Student’s Reflections on Attorneys and Mediation

By Lane Wood, Student at the William S. Boyd School of Law 

I joined the Strasser Mediation Clinic in the spring semester of 2014. Before the semester began, I completed an intensive training through the Clark County Neighborhood Justice Center (NJC). Thereafter, I continued to develop my facilitative mediation skills over the course of the semester by mediating divorce cases in Clark County’s Eighth District Family Court and small claims cases at the NJC.

After two and a half years of law school and beginning to work in law firms in town, I was convinced that nobody would go through the time and expense associated with litigation unless they had no other choice. However, from my experience in the Mediation Clinic, I learned that my thoughts were far from the truth. In the family courts, many cases slowly working their way through the system were there not because the parties needed a judge to rule on a legal question, but rather because the parties were unwilling or unable to communicate.

My experience in the Mediation Clinic and in litigation practice settings has taught me that, while many people involved in the court system turn to attorneys for help, many attorneys often have a different idea of what “help” means to their clients. I saw attorneys with an inherent interest in being paid for their time that have been trained to think that all interests can be distilled down to a dollar amount. But the true interests of their clients often extended far beyond money or a particular item’s monetary value – they cared about underlying relationships, the sentimental value of personal property, or simply being able to move forward in their own lives. These underlying client interests were often overlooked in lieu of money. Attorneys, and the courts in general, consistently oversimplify these underlying interests and values by reducing everything to a dollar amount, which focuses resolution on dividing items between parties in even dollar amounts. Framing the dispute in this manner, purely as a problem of distributing assets and liabilities, is bound to leave both parties disappointed because the special value that each person may assign to a particular item are given no consideration. Attorneys often work to maximize their client’s share of the underlying value of everything rather than focusing on what their client truly wants.

Mediation, particularly the facilitative style of mediation, counteracts this oversimplification of interests and values. In divorce mediation, mediators work with the participants to overcome their unwillingness or inability to communicate with each other. The participants, rather than the attorneys, are not only allowed but are invited to frame the dispute. The special values and interests of the participants control the discussion and the participants are not bound by the traditional zero-sum negotiations that are so prevalent in the legal world.

In the divorce and small claims mediations that I conducted, it was not uncommon for individuals to find, after listening to the other participant, that they already agreed on several issues. Typically, the participants were much closer to agreement than they had previously realized. Many times, a simple apology or a few small concessions were the keys to resolving the entire dispute. I was shocked to see how many cases had ended up in court when they could have been resolved relatively quickly if people were able to cooperate or their attorneys were able to help them overcome barriers to communication.

I think that many attorneys fail to recognize the benefits that come from cooperation. Legal education indoctrinates us in the adversarial system where “winning” requires the obliteration of the opponent and success is determined by how much you can take from another. Attorneys are not expected to cooperate with the enemy. Rather, attorneys are preparing for battle.

In the Mediation Clinic, I saw attorneys fail to realize that a cooperative model of dispute resolution is often better for their clients and better for themselves as attorneys. Cooperative models of dispute resolution, such as mediation, provide a more efficient and cost effective alternative to trial. Mediation also provides a means to explore the underlying interests and values of the parties to the dispute and seek a mutually beneficial outcome to the dispute. As the participants are responsible for all terms of any agreement or resolution, they are generally more satisfied by the outcome and are more likely to follow the terms of the resolution.