Better Mediators?

Better Mediators?

This Blog asks interesting questions, that should challenge anyone considering the way that civil justice works to examine their own thinking. 

Are attorneys better mediators? If yes, is that true across all case types? Do attorney mediators have higher rates of settlement rates or party satisfaction? Do they have fewer ethics violations than non-attorneys? There are many
markers of success, but these are the minimal criteria used by judges and
court administrators as they decide whom to include or exclude from rosters.

The answers to these questions have significant policy implications for judges
and court personnel as guardians of court-referred mediation programs.

Often attorneys, judges, and mediation program administrators state a
preference for the use of attorney mediators, which excludes non-attorney
mediators seeking to earn a living while making a meaningful contribution
to the field of mediation.

If this preference is supported by the data, then it makes sense to steer clients toward attorney mediators or to restrict rosters to attorney mediators only. If, however, non-attorney mediators have equal or higher settlement and/or satisfaction rates and/or if their rates of ethics complaints are lower, then such action would be counter-productive and perhaps even unethical.

The Dispute Resolution Section of the American Bar Association has long affirmed that the field of mediation should remain open to both attorney and non-attorney mediators alike and made a public declaration to that effect in the late 1990’s. It is time for a data-driven analysis of these important matters - not just for the US, but for all jurisdictions. The present study is US based, but quite probably of interest to many systems. 

Understanding any potential differences between the performance of attorney and non-attorney mediators is critical for those building mediation rosters and selecting mediators for specific cases. Courts have an affirmative duty as guardians of the judicial process to assure that any policies governing court-ordered mediation serve the public interests. The literature makes the distinction between these two groups using anecdotal evidence, but methodologically rigorous studies are largely absent even though the data needed to analyze this question is relatively plentiful.

There is probably no clear answer to many of these questions. But the extended article in the Journal of Mediation Theory and Practice by Susan Raines and her colleagues at Kennesaw State University provides some objective markers with which to consider those questions.

So what data to look at?

This study compares attorney and non-attorney mediators’ settlement rates by case type, including landlord-tenant, small claims, family law, and superior court (large claims) disputes.

Additionally, this study examines mediation exit surveys of parties and their advocates, looking for differences between attorney and non-attorney mediators in participant satisfaction rates.

Lastly, this study examines ethics complaints against mediators to see if
attorney or non-attorney mediators are more likely to receive ethics complaints.

More details about the article and the Journal 

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