Why You Should Consider Mediators Who Are Not Attorneys.
Why You Should Consider Mediators Who Are Not Attorneys
By Glen Bickford, Minnesota Qualified Neutral and Trained Mediator
Most Mediators in Minnesota are attorneys. Only a small percentage of mediators are what the attorneys call “Non-Attorneys.”
Mediation, many attorneys believe, should be something practiced by attorneys alone, as only attorneys know the law. Many attorneys in Minnesota have tried, and continue to try to lock out non-attorney mediators. The argument goes like this. Mediated settlements are legal documents. Only attorneys know the law so only attorneys should be mediators.
In some ways this argument makes perfect sense. It’s great to have a mediator who knows laws. But are attorneys the only people who know laws? No, we all know many laws, or else we’d have chaos in our cities and on our roads. We know we shouldn’t hit people without a good reason (and most often, even if we do). As drivers we shouldn’t speed or run stop signs.
Likewise, non-attorney mediators should know enough law to help make an agreement. A skilled “non-attorney” professional mediator can help a couple reach an agreement on parenting time without needing to understand patent law. When agreements are reached, if a licensed attorney looks over the agreement and writes it up for court, no laws are going to be broken.
Another idea is hidden in what many lawyers say. When they say only lawyers should be mediators, they are saying the most important part of mediation is knowing law. But is it? Disputes are legal and logical, but they are also emotional. Anyone who has ever seen two people argue knows that.
To be a good mediator, a mediator should understand emotion, too. Unless a mediator can get people to settle down, people will never understand each other, understand positions, or listen to reason. In arguments people often get into “fight or flight” mode. They get angry, afraid or even shut down completely. When people are upset or worse yet shut down, no amount of logic or knowledge of law is going to help.
Another big part of being a good mediator is being neutral. This goes against what attorneys are taught in law school. Attorneys are taught to be zealous advocates for one side: their side. It is hard work for lawyers to undo their training and be neutral with both sides.
So if lawyers aren’t always the best mediators, what’s the alternative? Someone who is trained to be neutral, someone who has years of practice being neutral. Someone who is skilled in dealing with emotions, skilled in getting both sides to trust them. Choose your mediator carefully. Psychologists, counselors and pastors can be good mediators, only if they know enough law not to make stupid mistakes. Attorneys can make good mediators only if they can be neutral and are comfortable dealing with emotions.
Above all, find a mediator who understands that mediation is more than just win/lose.
Mediation is helping people find win/win and make an agreement everyone can live with.