Young Lawyers - The Future of Mediation

Posted on September 10, 2009 03:14 by David L. Campbell

Why is it that virtually every mediator I've encountered during my five years of practice has had grey hair? There appears to be a growing misconception that a mediator must either have 40+ years of practice under thier belt or have recently "retired" from the bench to a more lucrative mediation role. Do senior practitioners really have secret facilitative gifts that only begin to manifest themselves later in life?

Here's the problem. Spending your entire life deciding cases from the bench or battling in the trenches of litigation require a very different skill set than those necessary to successfully facilitate a positive and mutually acceptable agreement between bitter enemies. Simply placing the parties into seperate rooms (sometimes after a joint session) and throwing numbers back and forth is not real mediation, although it can be somewhat successful. The ability to identify weaknesses in the respective positions of each parties (from long years of experience), while great for judicial settlement conferences, also doesn't fit the bill as true facilitative mediation.

Having taken a 40 hour court-approved mediation traning course while in law school, and having continued to mediate a variety of cases every since, I can speak from experience in stating that some of the best mediators I have ever observed in action are not even lawyers. If folks who are social workers, teachers, and others with diverse educational backgrounds can successfully mediate, why not young lawyers?

Perceptions aside, most young lawyers view thier lack of experience as the greatest stumbling block to mediation. Regretfully, many of the senior practioners who snap up this work have little to no experience serving as mediators before hanging up their shingle. Sure they may have participated as counsel to a party at mediation or they may have presided over settlement conferences, but this experience rarely translates seamlessly into thier new role as mediator. Instead, the trenches of mediation experience are the community based mediation centers that can now be found in every corner of the United States.

Like many other young lawyers, I cut my teeth as a community based volunteer mediator working on a wide range of cases, from family and probate disputes, to contract claims and real property battles. With many district courts across the country now sending cases to community based mediation early in the litigation, you'll be thrilled at the wide variety of matters you will quickly find yourself mediating. I fondly recall putting together a parenting time agreement that included details no court order would ever consider. Both parties were reasonably happy with the outcome, something that never would have happened if the Court had been forced to intervene. Unlike evaluative mediation that requires the mediator to have a certain level of familiarity with the practice area, facilitative mediation often works better if the mediator does not have a strong background in the area, as it helps them remain an impartial neutral. This allows the mediator to fully control the process, while the parties work through and often resolve thier conflicts.

If you are ready to take the next step towards becoming a mediator, I highly recommend that you visit the National Association for Community Mediation at http://www.nafcm.org/. They can help you get connected with a local mediation center and the various training courses necessary to obtain court-roster approval. While the skills and experience you will gain through mediation are different than those employed in your legal practice, you'll be amazed at how these two skill sets complement each other. With the right experience and training, young lawyers can be great mediators. Let's dispell the myth and prove that its real experience mediating cases, and not grey hair, that makes the mediator!


David L. Campbell*
Attorney / Barrister & Solicitor
Bowman and Brooke LLP
50 W. Big Beaver, Suite 600
Troy, MI 48084
Direct: 248.687.5326
Mobile: 519.890.9041
Fax: 248.743.0422
david.campbell@bowmanandbrooke.com
* also licensed in Ontario, Canada

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Comments

9/10/2009 4:18:28 AM #

I agree that zealously defending a client doesn't necessarily translate well into serving as a mediator.  I'm curious if there are lawyers out there that have used "less senior" lawyers as mediators and if so, could they recognize a difference in ability to get the parties to resolve a conflict?

Cynthia Arends United States

9/10/2009 4:15:32 PM #

The only mediators I have used have been retired judges.  I agree with David that a younger mediator could be very effective and should be considered depending on the parties and the case.

Melissa Tannery United States

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