Bar News - November 19, 2010
Opinion: Mediation: Only Experienced Lawyers Need Apply?
By: Scott Flegal
I bet you didn’t know that the third Thursday of every October is conflict resolution day. The day was created by the Association for Conflict Resolution in 2005, and if nothing else, it gives me an excuse to get back up on my mediation high horse for a few moments. Plus, I recently attended a mediation event in Nashua that is worthy of mention.
On October 6, the NH Conflict Resolution Association and the Nashua Area Networking Group held a joint program at the Nashua Country Club. Many area mediators were in attendance, as was Nashua Mayor Donnalee Lozeau. The group honored NH Chief Justice John T. Broderick, Jr. for his contribution to conflict resolution and to the advancement of mediation in New Hampshire in particular. Chief Justice Broderick has been instrumental in improving mediation within the New Hampshire court system and was the chief architect of the recently established Judicial Branch Office of Mediation and Arbitration.
For those of us in the room who have been practicing and preaching the virtues of mediation as a tool for resolving conflict, the gathering was uplifting. In his acceptance speech, Chief Justice Broderick spoke of attending a week-long mediation workshop at the Harvard Law School Program of Instruction for Lawyers, and how the program had caused him to have an epiphany. The workshop opened Chief Justice Broderick’s eyes to the unusual combination of skills that good mediators employ. I think I even detected an admission by Justice Broderick that prior to attending the workshop, he may have been unaware of the unique skill- set required to mediate effectively.
As a New Hampshire lawyer who believes strongly in the value and importance of both mediation and mediation training, I found that statement to be both encouraging and frustrating. It was encouraging to hear Justice Broderick confirm one of my own core beliefs about mediation. But it was frustrating too, because the reality is that the mediation market in New Hampshire is in the process of being co-opted by trial lawyers and retired judges, many of whom have not necessarily invested much in formal mediation training.
There are several reasons for the manner in which the mediation market in New Hampshire has evolved. But chief among those reasons is a rather brutal truth for the mediation community that it needs to confront head on: as a group we have failed to really convince anyone – members of the general public, lawyers or judges – that mediation is a process best conducted my mediators with excellent mediation training and experience. Because of this failure, we have in our own way helped to cede the conflict resolution market in New Hampshire to its traditional owners: trial lawyers and judges.
Should trial lawyers and retired judges have an "exclusive" on conflict resolution? I for one say no. Experienced judges and trial lawyers no doubt have a nose for quickly sniffing out the "value" of a case. This skill is helpful in driving the parties in a mediation to settlement. But well-trained mediators understand negotiation, and how to facilitate it, in a way that judges and trial lawyers may not. Seriously trained mediators have learned how to deal with conflict in the room, and understand how emotion can influence parties’ decision-making during conflict. These skills can provide the parties with an opportunity to reach the settlement that maximizes the value available for the parties. In sort, it can provide the parties with the opportunity to reach the best settlement.
We mediation practitioners have also been too quick to engage in behavior that devalues our services. There has been way too much "free" mediation. That Nashua has a crew of trained community mediators who are willing to help people in disputes for free is, on one level, wonderful. But mediators need to educate the public that their skills are worth paying for. I have for years mediated for free in the Superior Court Rule 170 program, and in small claims court. But I have decided that I am not mediating for free any more.
Mediators also need to be willing to fight harder for their turf in the dispute resolution marketplace. Recently, NH Bar members received a notice informing us that the new business court in Concord was looking for mediators to provide services to the court in business cases. The notice set forth the requirements for eligibility. The court is looking for attorney mediators only, completion of the Rule 170 training, five years of substantive experience mediating under that program, and here is the kicker: applicants must have at least 15 years of experience trying commercial cases.
Never mind that the solicitation excludes non-attorney mediators. That is fodder for another article. But the final qualification effectively guarantees that only an elite group of trial lawyers and judges will apply. It guarantees that there will be a lot of familiar faces padding around mediating cases in the new business court. The vast majority of mediators in the State of New Hampshire, some of whom are quite talented, have been effectively excluded from the process. But where is the hue and cry from the New Hampshire mediation community? The silence has been deafening.
So, on the one hand, those of us who mediate should be encouraged that thanks to Justice Broderick and others, mediation is now readily accepted as a legitimate means for resolving conflict in New Hampshire. But we have a long way to go. The challenge of educating the public about what mediation is and how it ought to be conducted, and about its endless possibilities for resolving conflict is still out there. And, amazingly, it seems as daunting as ever.
Scott Flegal practices business law at the Flegal Law Office in Nashua. He also serves as a mediator in business disputes and is the principal of NegotiationWorks, LLC. This column is a revised version of an article published in the Nashua Telegraph.