Four Ways of Looking at a Lawsuit: How Lawyers Can Use the Cognitive Frameworks of Mediation
66 Pages Posted: 21 Feb 2009 Last revised: 1 May 2009
Date Written: February 20, 2009
When lawyers represent clients in the process of mediation, tensions may arise between the goals and actions of the mediators and those of the lawyers. Mediators may be seeking to find ways to create new value for the parties, beyond a simple compromise of their legalistic claims and defenses. Or they may be seeking to repair or improve the parties' relationship. Or they may wish to lead the parties to greater mutual understanding. But lawyers often seem to be limited to an adversarial, legalistic approach, looking only for some minimal or reasonable compromise and standing in the way of the mediators' other goals. These tensions run deeper than a difference in goals or tactics or techniques. They arise from different cognitive frameworks about conflict and ways to deal with it. The cognitive frameworks, often operating tacitly and without an actor's conscious awareness, create different and competing perceptions of what is relevant and what is appropriate to do. The mediation literature has articulated four different, if overlapping, cognitive frameworks for dealing with conflict in a mediation setting: distributive compromises, creating more value for all, changing relationships, and increasing the mutual understanding of the parties in conflict. Four examples of conflicts between mediators and lawyers, drawn from stories of actual mediations, demonstrate these conflicting frameworks.
Understanding the cognitive frameworks reveals ways in which lawyers can operate congruently with mediators, rather than in opposition to them. The cognitive frameworks are versions of ways that people - lawyers included - ordinarily have available to deal with conflict. There is nothing inherent in "legal thinking" that prevents lawyers from shifting into non-adversarial frameworks in a mediation, although the shift can be challenging. Similarly, a lawyer's ethical obligation to act in a client's interest does not stand in the way of a lawyer inhabiting one of the alternative frameworks. Indeed, because the alternative frameworks can actually serve a client's interests in ways not easily achievable within an adversarial, distributive approach, lawyers have a moderate ethical obligation to seek to use alternative frameworks within a proper mediation setting. But it is not easy to shift from one framework to another simply by intending to do so. I suggest that paying attention to certain categories of things discussed in mediation is a practical way to identify and influence the operative framework. Certain subject matters, such as what happened in the past, what will happen in the future, legal meaning versus moral meaning, feelings, relationship, and how the parties intend to move into the future, tend to be distinctive for different frameworks, both partially constituting a framework and leading others into it. Beyond the questions of whether lawyers can mentally inhabit the alternate frameworks, whether they ethically may use them, and whether they ethically should use them, attending to the subject matters thus can give lawyers a technique for how they can move between frameworks.
Keywords: mediation, legal profession,legal ethics, professional responsibility
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