In a recent article entitled Gerry Spence, Marshall McLuhan, and What Lawyers Do In Mediation (https://www.mediate.com/articles/PressmanA1.cfm) noted mediator Arthur Pressman details the different roles available to attorneys in mediation. He compares the popular US-style mediation to what he calls the “international-style” mediation in Europe. At the Vienna IBA/VIAC Joint Mediation Competition (VIAC is the Vienna International Arbitral Centre) he observed the “International Style” where each attorney simply served as an advisor to the client during the mediation while the client/party advocated its position. These roles differ significantly from the practice in the US where the client is traditionally sidelined, sitting quietly as the attorney advocates the client’s position.
Attorney Pressman points out that US attorneys assume the same role in mediation as they do in a courtroom where the lawyer speaks while the client listens. These roles in US mediation come from habit; there is no mediation rule that assigns these roles. Since the core tenant of mediation is “self-determination” perhaps there is something to be learned from the International Style and mediation results could improve with the attorney as a co-presenter with the client. The value of self-determinative mediation is that the client has the option to actively participate instead of accepting the traditional quiet, passive role required in court proceedings. Attorney Pressman recognized that in mediation, increased client involvement is better than increased attorney involvement; “that’s why in private caucus sessions, clients get much of the mediator’s attention.” Mediation with greater client involvement could enhance the process, and likely yield more productive results.
I found Arthur Pressman’s comments to be “spot on”. In my practice as a Mediator, I endeavor to develop a relationship with the clients so that they are not hesitant to participate. I am mindful that they are the ultimate decision makers and as the mediation session progresses I must constantly be alert to how they are reacting to the discussions. Even when the attorney is serving as the spokesman in caucus conversations, I attempt to engage the client so that they do not feel left out.
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