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The role of legal knowledge in the mediation process

Not all lawyers are created equal, which is to say that attorneys have different areas of specialty, different degrees of experience, different competencies, and different personalities. Selecting the right attorney requires really doing one’s homework to ensure a good fit.

The same principle applies to mediation. Not all mediators are created equal. To an extent, this can be a good thing, particularly insofar as it means that mediators have different areas of expertise and different approaches to the mediation process. In other ways, it isn’t such a good thing. For example, a mediator who seeks to turn the process into a mini-arbitration or mini-trial is probably not going to be an effective mediator for many types of cases. A recent article discussing divorce mediation made the important point that making mediation into a legalistic process isn’t the right solution in most cases. 

It is important to understand that mediation is not monolithic thing, and that there are different approaches to the process. We have previously written on this blog about several different approaches to mediation, including facilitative, evaluative and transformative. Mediators who value mediation as a means of screening legal issues and evaluating the strength of each party’s respective position are going to prefer the evaluative approach to mediation. It isn’t always the case, though, that evaluating a dispute based on the legal merits of the parties’ positions is the best approach to resolving a case. In some cases, it can be helpful, but there are other ways to approach the process as well. In the facilitative approach to mediation, for example, the goal is for parties to engage in open and honest communication with the aim of reaching a mutually acceptable resolution, regardless of the legal merits of each other’s positions.

Some experts in the field of mediation suggest that those who hope to avoid an overly legalistic version of mediation should avoid working with a mediator who has a background as an attorney. This might be a good point from a marketing perspective, but the fact of the matter is that having a legal background doesn’t determine how a mediator approaches the mediation process, nor the fact that knowledge of the legal system and particular areas of the law can actually be helpful in the mediation process when used discriminately. At the end of the day, choosing an effective mediator requires doing one’s homework and looking at how each mediator prefers to approach the process. 

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