Should Mediators in Workplace Disputes Be Lawyers?

Abstract

Due to the increased interest in the possible applications of alternative dispute resolution (ADR) processes in the past ten years, the term mediation has become a permanent part of legal terminology.[1] Mediation is also a significant dispute resolution method that is practised by lawyers, non-lawyers and is closely associated with workplace disputes.[2] Currently, a hotly-debated issue is whether mediators should be lawyers or non-lawyers. This is because most lawyer mediators and experts believe that lawyers have more mediating skills than non-lawyer mediators with which to analyze and evaluate the current legal positions of the disputants.[3] Furthermore, some mediation experts claim that using an evaluative approach is an indispensable part of effective, successful mediation; because non-lawyers cannot inform the parties about their legal rights and obligations[4] they should not be allowed to mediate.[5] However, others assert that non-lawyers contribute their own specialized knowledge and attributes to the mediation process, and that many of these attributes are not shared by their lawyer counterparts

References

1. Alfini J J, ‘ Evaluative Versus Facilitative Mediation: A Discussion’ [1997] FSULR 919
2. Beck C J A & Sales B D, ‘Family Mediation: Facts, Myths, And Future Prospects’ [2001] 3
3. Bercovitch J & Houston A, ‘ Resolving International Conflicts the Theory and Practise of Mediation’ in Jacob Bercovitch (eds), The Study of International Mediation: Theoretical Issues and Empirical Evidence (LRP, 1996)
4. Bingham L B, ‘Employment Dispute Resolution: The Case for Mediation’ [2004] CRQ 145
5. Bums R B, ‘Symposium: Some Ethical Issues Surrounding Mediation’ [2001] FLR 691
6. Bush R A B, ‘Efficiency And Protection, Or Empowerment And Recognition?:The Mediator’s Role And Ethical Standards In Mediation’ [1989] FLR 253
7. Bush R A B, ‘Efficiency And Protection, Or Empowerment And Recognition?: The Mediator’s Role And Ethical Standards In Mediation’ [1989] FLR 253
8. Chalmers C, ‘Danger Ahead: Ethics Guidelines for Lawyer Mediators’ [2006] MSBA 1

9. Daiker M, ‘No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators’ RL 499 Dolder C, ‘The Contribution of Mediation to Workplace Justice’ [2004] ILJ 320
10. Feerick J D, ‘Toward Uniform Standards Of Conduct For Mediators’ [1997] STLR 455
11. Folberg J & Taylor A, ‘Mediation: A Comprehensive Guide To Resolving Conflicts Without Litigation’ [1984] 246
12. Freeman M B, ‘Divorce Mediation: Sweeping Conflicts Under the Rug, Time to Clean House.’ UDMLR 67 Haley J M N, ‘Informed Consent in Mediation: A Guiding Principle For Truly Educated Deci- sion making’ [1999] NDLR 775
13. Haleyt J M N, ‘Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective’ [2002] HNLR 235
14. Harkavy J R, ‘Privatizing Workplace Justice: The Advent Of Mediation in Resolving Sexual Harassment Disputes’ [1999] WFLR 135
15. Jacqueline M. Nolan-Haleyt, ‘ Lawyers, Non-Lawyers and Mediation: Rethinking the Profes- sional Monopoly from a Problem-Solving Perspective’ [2002] HNLR 235
16. Kelly J B, ‘Who Should Be Mediator?’ [1992] FA 19
17. Laflin M E, ‘Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators’ [2000] NDJLE & P Pol’y 479
18. Lande J, ‘How Will Lawyering and Mediation Practices Transfrom Each Other’ [1996] FSUR 839
19. Love L P, ‘The Top Ten Reasons Why Mediators Should Not Evaluate’ [199] FSULR 937 Maute J L, ‘ Mediator Accountability: Responding To Fairness Concerns’ [1990] JDR 346
20. Maute J L, ‘Public Values and Private Justice: A Case For Mediator Accountability’ [1991] GJLE 503
21. Moore L W, ‘Lawyer Mediators: Meeting the Ethical Challenges’ [1997] FLQ 679
22. Nabatchi T & Bingham L B, ‘Transformative Mediation in the USPS REDRESSTM Programme: Observations of ADR Specialists’ [2001] HL& ELJ 399
23. Noce D J D, Bush R A B and Folger J P, ‘Clarifying the Theoretical Underpinnings of Media- tion: Implications for Practice and Policy’ [2003] PDRLJ 39
24. Reich J B, ‘Attorney V. Client: Creating A Mechanism To Address Competing Process Interest in Lawyer-Driven Mediation’ [2002] ULJ 183
25. Reich J B, ‘Attorney V. Client: Creating A Mechanism To Address Competing Process Interest in Lawyer-Driven Mediation’ [2002] ULJ 183
26. Riskin L L, ‘Mediation and Lawyers’ [1982] OSLJ 29
27. Riskin L L, ‘Toward New Standards For The Neutral Lawyer In Mediation’ [1984] ALR 329
28. Riskin L, ‘Understanding Mediator’s Orientations, Strategies, and Techniques: A Grid for the Perplexed’ [1996] HNLR 26
29. Stallworth L E, ‘Find A Place For Non-Lawyer Representation in Mediation’ [1998] DSM 19
30. Summers C W, ‘Employee Voice and Employer Choice: A Structured Exception To Section 8(a) (2)’ [1994] CKLR 129
31. Wessner B, ‘A Uniform National System of Mediation in the United States: Requiring National Training Standards and Guidelines for Mediators and State Mediation Programs’ [2002] COJCR 3
32. Wise M, ‘Separation Between the Cross-Practice of Law and Mediation: Emergence of Proposed Model Rule 2.4’ [2000] JPL & Pol’y 383
33. Wissler R L, ‘Court-Connected Mediation in General Civil Cases: What We Know from Empiri- cal Research’ [2002] OSJDR 641
34. Zerhusen K A, ‘ Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator’ [1993] KyLJ 1165
35. Zumeta Z, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’ (The National Academy of Distinguished Neutrals, September 2002) accessed 26 March 2013