Mediation Hits Mainstream

By Barbara Hulburt
Lex Claudia, Spring 1999

For many years, lawyers have watched the trend towards the increasing use of mediation and other forms of alternative dispute resolution (ADR) with a mixture of interest, trepidation, and flat-out distrust. New lawyers entering the profession may have had some exposure to the concepts in law school, but for most of us the trend hit after we began practicing. As the paradigm shifts from pure litigation and adjudication to less adversarial forms of dispute resolution, many lawyers have begun to feel that the rules of the game have changed halfway through and we no longer know how to approach what used to be second nature to us.

In law school we were taught to "think like a lawyer:" to approach a case by looking for the potential causes of action. That tended to make us ask the same kinds of questions to each client who walked in the door and to listen with a trained ear to hear each legal issue. For example, "Was the pearl necklace given to you before or after the wedding?" would be a question designed to determine whether the necklace was a gift and could be considered separate property. We would assume that the client would want to fight for the necklace and might not even ask the next question: "Is it important to you to try to hold on to the necklace?"

We believed that our role was to fight for our clients, and we thought that in most cases litigation was the way we would most likely get the best result. We understood that most of our cases would settle, but we also knew that the dance we would do on the way to settlement would involve preparing the case as if it were going to trial. It was what we did, and what we thought we were expected to do.

A statement attributed to Mark Twain says it best: "If the only tool you have in your backpack is a hammer, every problem looks like a nail." Although we all recognize that every case isn't the same, it is true that there is a standard procedure that gets rolling pretty much every time a new case walks in the door. The traditional litigation path leads through information gathering and discovery into settlement negotiations and trial. We tend to do the same things because that's what we know, that's what we expect of ourselves, and that's what our clients expect. We're comfortable on that path, we know that we will encounter obstacles (difficult lawyers on the other side, clients who don't have a realistic view of the case, difficult clients). We also knew that we could do a good job representing our clients because we had faced those obstacles before and could deal with them.

We also knew how to prepare our clients for what they would face in the litigation. We could tell them about cross-examination, we could prepare them to be deposed, we could educate them about negotiation techniques and about what they could expect from settlement discussions, and we could instruct them about courtroom procedures. It was our turf, and we knew how to do battle there.

So it's no wonder that we looked askance at the notion of a new way of doing business the "alternative" way of doing business that everyone seemed to be talking about. At first, most of us were able to ignore the fact that mediation is out there and to convince ourselves that our cases probably wouldn't be appropriate anyway. That way, we have been able to avoid putting ourselves and our clients into a situation with which we are unfamiliar - a new path, unchartered waters. But as the paradigm has continued to shift, the time when we are able to ignore the new ways is rapidly drawing to a close: enter the Rules Of Professional Responsibility.

In 1992, then-President of the Virginia State Bar, Edwin Burnette, appointed a Special Committee to Study the Virginia Code of Professional Responsibility. The Special Committee voted to look to the model rules structure, rather than to continue in the code format, and began to explore what it means to be a lawyer in this era. The rules format allowed the Special Committee to use very lengthy comments to be descriptive of what a lawyer could and should do, rather than simply prescriptive, as the code was. Among the shifts that this permitted was attention to a lawyer's role in negotiation, collaborative lawyering, and the use of alternatives to the traditional litigation path. The new Rules of Professional Responsibility, approved by Bar Council in 1998, were formally adopted by the Supreme Court of Virginia in February 1999 and become effective next January 1.

There are several rules, which had no counterpart in the old Code, that deal with a lawyer serving as a third-party neutral in ADR processes and, specifically, in mediation (Rules 2.10 and 2.11). More important for our purposes, however, is how the rules that deal broadly with every lawyer's responsibilities speak to this shifting paradigm. The idea of collaboration and problem-solving begins with the very first rule, Rule 1.1, Competence. The comment to the rule states that:

Another important skill is negotiating and, in particular, choosing and carrying out the appropriate negotiating strategy. Often it is possible to negotiate a solution which meets some of the needs and interests of all the parties to a transaction or dispute, i.e. a problem-solving strategy.

This comment is consistent with much of what has been written in the field of negotiation in the last decade, regarding win-win or interest-based bargaining. It is, however, the first time that such an idea has been squarely presented to lawyers as being not only acceptable, but encouraged in many situations.

In Rule 1.4, Communication, the comment states that there is a continuing duty to keep the client informed. While, again, that is an idea that has always been a part of a lawyer's ethical obligations, the new Rule speaks specifically to the need to communicate with clients about ADR. The obligation to communicate with a client includes a duty to advise the client about the availability of dispute resolution processes that might be more appropriate to the client's goals than the initial process chosen. For example, information obtained during a lawyer-to-lawyer negotiation may give rise to consideration of a process, such as mediation, where the parties could be more directly involved in resolving the dispute.

Similar language is found in other rules as well. Perhaps the most eye-opening for some will come in the comments to Rule 1.3, Diligence. For many lawyers, the quintessential self-definition comes with the phrase "zealous advocate." The new rules in no way dispense with the idea of zealous advocacy; they simply reframe the notion to incorporate a broader view of the ways in which one might advocate for her clients. The comment to Rule 1.3 states:

Additionally, lawyers have long recognized that a more collaborative, problem-solving approach is often preferable to an adversarial strategy in pursuing the client's needs and interests. Consequently, diligence includes not only an adversarial strategy but also the vigorous pursuit of the client's interest in reaching a solution that satisfies the interests of all parties. The client can be represented zealously in either setting.

So what's the message? It is not one message, but several. The first is that the Bar and, now, the Supreme Court of Virginia, have stated explicitly that different means of resolving cases need to be explored. We all know that we need to have strong negotiating skills in the practice of law because the vast majority of our cases are resolved through that mechanism. But more and more pressure is being brought to bear on lawyers to go beyond settlement negotiations, to understand the most popular form of "alternative" dispute resolution mediation and to be able to use it appropriately.

The next message is that in order to comply with the new Rules of Professional Responsibility, lawyers must understand dispute resolution options, be able to assess each case that they handle to determine what the best approach to resolving the case might be, continue that assessment throughout the life of the case, and be able to communicate all of that to their clients.

Finally, the message is that mediation isn't "alternative" anymore. It is part of the mainstream. Knowing how to participate effectively in this new paradigm of lawyering needs to be a part of every good lawyer's repertoire and the Rules of Professional Responsibility will make sure that it is.

Reprinted with permission by the Virginia Women Attorneys Association.