SIX KEY QUESTIONS FOR THE ASPIRING MEDIATOR WITH RECENT LAW SCHOOL TRAINING
Evan R. Seamone, M.P.P.

I. BACKGROUND

A. History of ADR and the Relevance of Mediation
 i. Common among different cultures and ethnicities
1. Ethnic Differences: Native Americans, Consensus
a. Cross-cultural compatibility: the problem of
“How can you understand what it is like to be me and to have lived in my shoes?”
 ii. Recently rediscovered during NPR—reinventing government
1. Promotion of efficiency and employee recognition
a. Examples of recent Hammer Awards
 i. The impact of programs by personnel who interact with them: Bingham’s Research
 iii. The need to reduce litigation
1. Clogged dockets and limitations to judicial efficiency
a. How are court programs structured?
 i. Who is doing the Mediating
1. What types of results have been achieved?
a. How many cases do not settle, and why don’t they settle?
 iv. Different areas:
1. Mediation
a. Neutrality and impartiality
 i. Related concepts like shuttle negotiation
1. Limitations, like knowing when to stop.
a. Familiar adage: “Mediator Know Thyself.”
 i. New innovations like FMCS multi-party sessions involving community groups.
2. Conciliation
a. How to distinguish from mediation
 i. Examples
1. Expected objectives

3. Facilitation
a. Example: Days of Dialogue
 i. Expected Objectives
4. Arbitration
a. Binding or Non-binding
 i. Adversarial Nature
1. Difference from court proceedings
a. Maintaining neutrality
5. Med-Arb
a. Distinguishing factors
 i. Selecting the point at which to switch over, i.e., when is there truly impasse?
6. Mock Trials
a. Notable example in A Civil Action
 i. Level of prominence in private sector
1. Uses in complex litigation

 v. Mediation is unique because it gets to underlying issues
a. Psychological aspects
 i. Most people just want to be heard
1. Enlarging the pie: distributive and integrative systems

 vi. Required by most federal and state courts
a. Recent statistics
 i. Distinguishing outliers
1. Reasons for variance from the norm.
a. Different results?

B. Conflicting Theories and Misuse
 i. Definitional problem
1. Confusion with decision-making programs
a. The aspect of voluntariness
 i. The author’s experience with court-mandated sessions: less motivation to solve the problem and more of a reason to use the program for harmful ends.
1. Misuse of mediation by disputants
a. Commitment to the confidentiality of the process
 ii. Transformative ADR, management, and conflict-averse organizations
a. The idea of a learning organization: Bingham
 i. Peer mediation and employee working conditions
1. Transferability of skills
 iii. Mediation as myth: unreal expectations and empty promises
a. Cases where it hasn’t worked
 i. The recent judgment in Hooters of America, Inc. v. Phillips (4th Cir. 4/8/99)
1. Instituting unfair dispute resolution programs
 iv. The need for legal certainty
a. No case precedent
 i. Potential for illegal agreements
1. Overprotection of Mediators
 v. Confidentiality as an obstacle to social justice
a. No public knowledge
 i. Inability to enforce if non-binding
1. Ethical guidelines, or lack thereof

II. MEDIATION AS A PROFESSION

A. The hierarchy:
 i. Judges
1. Years of experience and more legal knowledge
a. Danger of leaning towards a particular side
 ii. Lawyers
1. Knowledgeable in the law
a. Danger of being too adversarial
 iii. Psychologists
1. Understanding of human factors
a. Danger of adopting passive roles because of limitations in normal profession
 iv. Clergy
1. Counseling experience
a. Lack of legal knowledge
 i. Danger of inability to see beyond religious boundaries
 v. Frontline Administrators
1. Used to dealing with people
a. Part of large bureaucracies
 i. Time limitations
 vi. Laypeople
1. Ability to empathize and communicate clearly
1. Note the difference between empathy and sympathy
b. Less chance of social distance
 i. Lack of legal knowledge
 
 

 vii. Children
1. Mediation experience at an early age
a. Hormones and inevitable childhood growth experiences
 i. How compatible are these skills
1. Data from Community Boards (CA)

B. Law Students
 i. Law firm recruiting
1. How many law firms seek students for mediation?
a. What role does mediation experience play in the selection process?
 i. Call law school career services, e-mail firms, and statistical analysis
 ii. Mediation firm recruiting
1. How many firms actively recruit from law schools
a. How many firms entertain student submissions
 i. Where do firms recruit mediators?
 iii. Contracting
1. Is there a temp agency for mediators?
a. RENT-A-JUDGE programs
 i. Similarities to shared office spaces for lawyers
1. How many survive on mediating alone?
a. How does the organization select who will do the mediating?
 iv. Solo practice
1. Common arrangements
a. Is partnering more efficient?
 i. Drawbacks
 v. Volunteerism
1. Finding the right opportunity
a. The training trade-off
 i. Grants
 vi. Evaluating and training
1. Special requirements
a. The consulting angle

III. A NICHE FOR GRADUATING LAW STUDENTS; THE ROLE OF STANDARDIZED EDUCATION

A. Enough training
 i. Similarities
1. Conflict resolution as law’s goal
a. Differences
 

B. More Training
 i. Which skills need enhancing?
1. Staying in a legal setting for the training

C. New Paradigm
1. Drawbacks in legal education
a. Law School and development of the self
 i. Concepts of self
1. Tie in to “Mediator Know Thyself
a. The need to unlearn or relearn

IV. CLIENT PERCEPTIONS

A. Personality
 i. How does one make contact?
1. Initial presentation
a. The mediator’s Monologue
 i. Triage skills
B. Experience
 i. How will a client know?
1. Personal connections to people or organizations
C. Certification
 i. Costs
1. Testing criteria
a. Quality of simulations
 i. Quality of debriefing
1. Who already has the certification?

V. CREDENTIALS

A. Requirements
 i. Florida’s requirements
1. Mediation as profession
a. Elitism and exclusion from the trade
 i. Examples of legislative proposals
B. Initiation into the hierarchy
 i. How to meet the movers and shakers
1. The power of Computer Listservs
a. Organizational subcommittees
 i. Scholarship in the field
C. Experience as a more important factor
 i. The tradeoffs
1. The power of referrals
 
 

VI. WHERE TO PRACTICE

A. Geography
 i. Agricultural
1. Unique opportunities
a. ADR requirements in most every industry
 i. Possibilities where they are least expected
 ii. Unique needs
1. Initial development
a. The chance to impact an entire social system
 i. Technical expertise
 iii. City vs. Rural
1. Diversity in types of conflict
a. A better way to find one’s niche
 i. Different demands in rural areas

B. Socio-political concerns
 i. Race
1. Gender
a. Ethnicity
 i. Socio-economic status
1. Language
a. Borrowing from counseling and psychotherapy to resolve cross-cultural dilemmas

C. Problem areas
 i. Domestic abuse
a. The lack of enforcement to a settlement
 i. Less motivation to seek help if the session fails
1. Physical dangers if a session gets out of hand
 ii. Victim-offender
a. Limited compensation avenues
 i. Competition with preexisting criminal sanctions
1. The issue of voluntariness
 
 

 
VII. BILLING SYSTEMS

A. Volunteerism
 i. Fixed fees
1. Variable Fees
a. The need to combine strategies or risk perishing

VIII. CLIENT SOURCES

A. Client referrals
 i. Advertising
1. Should a mediator select the same methods as a lawyer?
a. Is there something unique about mediation advertising?
2. Referral Lists
a. Where can a mediator find them?
 i. What are the limitations?
1. How do the courts decide who gets contacted?
a. Seniority or randomness?
 i. Non Profit Organizations
 ii. Courts
 iii. Trade Associations

IX. CONCLUSION

A. No standard answers
 i. This is to be expected of a relatively new and growing profession with less-developed standards
B. Calls for creativity
 i. Which profession doesn’t
C. Potential for a great payoff
 i. Newness of the profession can work in a mediator’s favor
1. The time to start thinking is while you are still in school
a. Any experience gained during law school will, at the very least, enhance the dossier and one’s ability to stand out in a pile of applications
1. If anything this is truly the definition of a “win-win” situation