By Douglas Katz – 02/14/2023
Mediation and the law often go hand in hand. It makes sense when you consider that mediation deals with conflict and conflict often spills over into the legal realm. In fact, there are certain types of mediation in particular states and counties that require attorneys, but, aside from divorce, this is usually not the case. The general public, however, does not know this. As a result, it is logical that when I tell people that I mediate, the follow up question often is about my legal experience. The simple answer – I don’t have a law degree and do not practice law.
This could be looked at as disadvantageous for both me and my prospective clients, but nothing could be further from the truth form many situations and scenarios. I want to stress that this is not monolithically true and there are times that you should seek assistance from a lawyer, but this does not always equate to full representation. In many cases, a customized approach with a mediator and an attorney can strike a great balance. To do this you need to not only understand the nature and character of your conflict and the parties, but also the advantages of different types of mediators.
Non-attorney mediators, like me, can bring several benefits to the mediation process. Some of the key benefits include:
Cost Effectiveness and Value
Fees for all types of services vary based on the capabilities of the provider and more capabilities equal more cost. If the capabilities do not match your needs, you are overpaying. This is the one advantage that resonates with a good number of clients. Non-attorney mediators typically charge lower fees than attorneys, making mediation more affordable and accessible for people who might not be able to afford legal representation. I recommend that anyone looking at mediation fully scope their conflict to see if they can use a non-attorney mediator or even a hybrid approach. You can interview mediators as part of this process and they can provide you some of the answers. In the end, you may find that you can get a great mediation for sometimes much less than you would pay with an attorney mediator. Sometimes you can even find mediators with decades of real world experience and graduate level post-secondary education at a cost of 75% or less than you would pay a similar attorney mediator.
In my experience, one of the key duties of an attorney is reducing risk for their clients. Their thinking is appropriately rooted in the assessment of how something will leave their client exposed as well as how any solution will interface with the legal system. This is a great thing, especially in cases where one is required or when there is legal peril. In less litigiously inclined situations, however, the legal lens from which attorneys view and analyze things. When you need a lawyer you want that, but it comes at a higher cost both financially but potentially in the synthesis of the solutions and the outcomes.
With a non-attorney mediator, solutions are more often untethered by legal considerations and concerns. This means that what is deemed possible can be bigger and more expansive. This does not mean untethered from reality and often your non-attorney mediator will help you keep within reasonable terms and terms that comply with things like company policies in workplace mediations or with the lending industry in real estate mediations. I always recommend that you consider this at the onset of using mediation for conflict resolution and seek out mediators right for the type and scope of mediation.
Specialized Skills and Experience
This again goes back to understanding your needs and the type of mediation, to include the mediator, that you require and that will add the most benefit to you and the other parties. Luckily, there is actually a lot of variety in mediators across the industry. This includes both legal professionals and professionals from a dizzying array of other backgrounds.
For most mediators, the role is a second or later career and they bring to their craft the education, wisdom, skills and experience from earlier careers. This can be industry specific to properly ascertain the practicality of proposed solutions to being able to have sufficient empathy for all parties to build trust and work through the conflict. They may be able to use creative techniques and approaches to help the parties find common ground and work through their differences.
Overall, non-attorney mediators can bring many benefits to the mediation process. They are not a replacement for attorney mediators as there are unequivocally times when it is imperative that your mediator has legal experience. This is not the majority of situations, however, and even many attorneys will tell you that there are a lot of times when they would recommend the use of one or evaluating the use of one at the very least. Regardless of who you use, it’s important to always remember that the quality of a mediator, whether an attorney or not, is ultimately determined by their experience, training, and ability to facilitate a productive negotiation process.