Featured Article: Career advice
Paul F. Kirgis
Professor of Law, St. John's University School of Law, New York
Posted to the Dispute Resolution listserv, Sunday, January 09, 2005
As a former litigator, a current mediator, and a professor of both civil procedure and ADR, I wanted to add a couple of thoughts on the role of lawyers in the world of ADR. While I completely understand the desire of many non-lawyer mediators to disassociate mediation from the practice of law(because of the inherent bias of lawyers in favor of litigation), I'm not sure that that is either realistic or necessarily positive.
From the realist perspective, the fact that it is so difficult to make a living purely as a mediator means that most mediators will need to have some other source of income. The reality is that lawyers are the people in society best positioned to pursue mediation as an outgrowth of an otherwise profitable vocation. Particular individuals may be able to develop mediation practices in their areas of specialization, but for mediation to become as widely used as many hope, it is likely that lawyers will have tocarry much of the load.
Perhaps more importantly, for mediation to succeed, lawyers need to be drawn in rather than excluded. In our culture, lawyers hold the keys to conflictre solution. It is a common saying that people who are concerned about the rights of criminal defendants should become prosecutors. By the same token, people who are interested in finding more positive ways of resolving conflict should consider becoming lawyers.
Finally, while I believe strongly in the value of mediation, I am increasingly concerned about the current political climate in which powerful interests seem ever more determined to suppress litigation in the name of"reform." ADR has become a part of that trend. For example, more and more companies are putting mandatory arbitration provisions in their employment contracts specifically to prevent discrimination claims from getting to juries. This is not necessarily a good thing. In a society in which government regulation is perceived as anathema, litigation can be the only recourse of the weak against the powerful. In such a climate, it may be that the best mediators are people with enough legal knowledge to see when alternative processes are being used for manipulative purposes. Of course, it is not only lawyers who fit that description. But it makes sense to see lawyers as potentially vital parts of the solution rather than as parts of the problem. And it also may make sense, taking individual circumstances into account, for those interested in principled conflict resolution to consider becoming lawyers.
Professor of Law, St. John's University School of Law, New York
Posted to the Dispute Resolution listserv, Sunday, January 09, 2005
As a former litigator, a current mediator, and a professor of both civil procedure and ADR, I wanted to add a couple of thoughts on the role of lawyers in the world of ADR. While I completely understand the desire of many non-lawyer mediators to disassociate mediation from the practice of law(because of the inherent bias of lawyers in favor of litigation), I'm not sure that that is either realistic or necessarily positive.
From the realist perspective, the fact that it is so difficult to make a living purely as a mediator means that most mediators will need to have some other source of income. The reality is that lawyers are the people in society best positioned to pursue mediation as an outgrowth of an otherwise profitable vocation. Particular individuals may be able to develop mediation practices in their areas of specialization, but for mediation to become as widely used as many hope, it is likely that lawyers will have tocarry much of the load.
Perhaps more importantly, for mediation to succeed, lawyers need to be drawn in rather than excluded. In our culture, lawyers hold the keys to conflictre solution. It is a common saying that people who are concerned about the rights of criminal defendants should become prosecutors. By the same token, people who are interested in finding more positive ways of resolving conflict should consider becoming lawyers.
Finally, while I believe strongly in the value of mediation, I am increasingly concerned about the current political climate in which powerful interests seem ever more determined to suppress litigation in the name of"reform." ADR has become a part of that trend. For example, more and more companies are putting mandatory arbitration provisions in their employment contracts specifically to prevent discrimination claims from getting to juries. This is not necessarily a good thing. In a society in which government regulation is perceived as anathema, litigation can be the only recourse of the weak against the powerful. In such a climate, it may be that the best mediators are people with enough legal knowledge to see when alternative processes are being used for manipulative purposes. Of course, it is not only lawyers who fit that description. But it makes sense to see lawyers as potentially vital parts of the solution rather than as parts of the problem. And it also may make sense, taking individual circumstances into account, for those interested in principled conflict resolution to consider becoming lawyers.
This entry was posted
on Wednesday, August 31, 2005 at 8/31/2005 12:03:00 AM.
