A: We have mediated many employment discrimination cases in which the solution allowed a complainant to feel more comfortable in the workplace, or pave a pathway to advancement, while also allowing the employer to retain a valuable member of the team.
These mediations are deeply satisfying because we can engage in a great deal of creative problem solving: money is often part of the equation, but almost never all. Many times, the non-monetary provisions are what satisfy the complainant's interests and get the deal done.
Sometimes mediations fail because people have trouble letting go of a conflict. We once mediated a case between former intimate partners. During the case, we discovered that the plaintiff had been traveling across many states for each court appearance. By the time the case went to trial, that person was likely to have spent more on travel costs than any potential settlement, and yet the case failed to settle. Resolution is always the parties' decision, not ours.
Q: Are there circumstances in which litigation is preferable to mediation?
A: 'Preferable' is always in the eye of the beholder, and better analyzed in retrospect, but yes, in some circumstances litigation may better satisfy a client's interests. For example, sometimes establishing legal precedent is important. When I was in practice, our client in a major shareholder class action case believed that the judge had misinterpreted federal securities law. This legal issue was critical enough that instead of settling in mediation, our client chose to press on in hopes of obtaining a more favorable ruling. Ultimately, they won on summary judgment (long after I left the firm; all credit goes to others) and were pleased with the decision to litigate.
I also think litigation can serve a valuable purpose in leveling out a power or income disparity between parties. When you're dealing with a 'repeat player' like an institution versus a 'one-shotter' individual plaintiff, that plaintiff usually will not have much luck getting a satisfactory solution to his problem unless a lawsuit has been filed. That kind of case may settle later, but litigation is frequently a necessary first step.
Q: Is it necessary for the neutrals who conduct mediations to have legal training?
A: Mediation is not a regulated profession, so the qualifications for mediators depend greatly on where—namely, in which court, state or private ADR organization—the dispute is housed. For example, in order to serve on most New York state court rosters, mediators need not have legal training; they must complete a required amount of mediation training and gain experience in mediating certain types of cases. Other state court systems have similar requirements. In New York federal courts, mediators are required to be lawyers, sometimes with a minimum number of years in practice. Over the last 10 years, more and more federal district court mediation programs have begun to require that their mediators have legal training. By contrast, mediators with the Federal Mediation and Conciliation Service, which provided mediation services during the recent National Hockey League lockout dispute, are not required to have legal training, though they must demonstrate experience with collective bargaining agreements. In sum, private organizations, courts and administrative bodies have the flexibility to decide what qualifications they require for their neutrals.
Q: How widespread are efforts to brand the use of non-lawyers in mediations as the 'unauthorized practice of law?'
A: UPL complaints against non-lawyer mediators are rare, but ongoing, and the threat of UPL enforcement has caused consternation within the mediation community. New York has not enforced UPL provisions against non-lawyer mediators, but other states have, including Rhode Island, Connecticut and Virginia. To avoid UPL scrutiny, most would advise non-lawyer mediators to limit their role to that of a 'scrivener' in drawing up settlements, since many UPL complaints contain allegations that the mediator gave substantive advice during the drafting of legal documents. Non-lawyer mediators should also avoid issuing what might be construed as 'legal advice'—usually defined as applying the relevant law to the facts of the dispute.
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