By Barbara G. Madonik
Whether you think of a glass as half full or half empty, in the end, someone will still have to wash the glass.
In discussions about the value of dispute resolution and mediation, passions escalate and rights are proclaimed. Before and during actual mediation, lawyers protest perceived wrongs and assert "undeniable" rights. Then, at the end of the day, if the case is settled, each lawyer closes the case file and buries it forever in the heap of other cases that will never affect the lawyer's life.
This is not an anomaly. This is routine. Why, then, are lawyers so unwilling to hand over control of the process to the people who will live with the results for the rest of their lives?
Today, mediation comes in many forms. In the practice of community-based and court-diverted mediation, disputants stand pre-eminent as solution-finders and decision-makers. They are apprised of their rights and charged with the responsibility of resolving disputed issues by exploring options and creating a game plan. Guided by community-based mediators, complainants come to the mediation table without counsel. As parties responsible for their actions and solutions, they are encouraged and obliged to be in control, by being active participants in forging the settlement or resolution by which they will ultimately live.
Not so with counsel-based mediation. Even today, many lawyers involved in mediation intimate or state outright that it is a privilege, rather than a right, for disputants to be present at the mediation table. They treat attending parties as nuisances. Some carry on conversations at the table without even acknowledging the presence of their own clients or inviting them to participate. Others talk privately with the mediator. Still others caucus amongst themselves. These lawyers, in effect, are hijacking the mediation and operating as if it belonged to them. They give only passing thought to clients, who sit uncomfortably, facing each other and feeling like uninvited guests at someone else's dinner party.
It is time to set matters straight, in legal minds and at mediation tables – if lawyers have the courage to do it. During this revolutionary era for finding alternative solutions to litigation, it is timely for counsel to let go of any need to control their clients and all processes surrounding them. Lawyers must yield old ideas to a new reality that admits that clients have always owned all the processes. And while counsel is obliged to protect client rights and legal interests, counsel has never had the right to appropriate control of the process.
It is time to replace the backward idea that counsel has the right to grant clients the privilege of attending and participating in mediation. In fact, it is clients who have the right to grant privilege to their respective lawyers to represent or speak for them. It is both courteous and prudent to keep this in mind. While it may be tempting for lawyers to hang on to control because they may seem more knowledgeable than some clients and more articulate than others, when all parties finally leave the mediation table, it will be the client who will have to wash that glass.
© 1999 Unicom Resources, A Division of Unicom Communication Consultants Inc. This article first appeared in the Canadian Bar Association - Section of Dispute Resoluton Newsletter in June, 2000.
