How Can You Turn Adversarial Attorneys into Quasi-Mediators?

Abstract

This article grows out of an educational program sponsored by the St. Louis chapter of the Association of Attorney-Mediators, which functioned as a focus group.  It describes mediators’ experiences with attorneys in mediation who were cooperative and adversarial.

It describes things that mediators can do to make adversarial attorneys behave as “quasi-mediators.”  Attorneys acting as quasi-mediators help their clients realistically understand the other side’s perspectives.  The attorneys also promote their clients’ interests by enlisting the mediators’ help and encouraging the other side to adjust their positions.  Attorneys who sometimes act as quasi-mediators tailor their techniques to their clients’ preferences and the other side’s approach.  If the other side is acting badly and taking unreasonable positions, these attorneys vigorously advocate their clients’ interests.  But whenever appropriate, they look for opportunities to reach reasonable agreements, and they use mediation techniques to move the process in that direction.  They use mediation techniques, but they aren’t neutral or subject to rules governing mediators.

The article includes appendixes with lists dos and don’ts for attorneys to act as quasi-mediators and topics that mediators can discuss with attorneys to promote cooperation.

Keywords: attorney, mediator, quasi-mediator, cooperation, techniques

JEL Classification: K40, K41