Hyman - 4 Ways of Looking at A Law Suit

Rutgers School of Law- Newark
Legal Studies Research Paper Series

Research Paper No. 030

~and~

NYLS Clinical Research Institute
Paper No. 08/09 #15

Four Ways of Looking at a Lawsuit: How Lawyers
Can Use the Cognitive Frameworks of Mediatio

By

Jonathan M. Hyman
Rutgers School of Law- Newark

Electronic copy available at: http://ssrn.com/abstract=1347057
*
Acknowledgments: Thanks to the participants of the Rutgers faculty colloquium and the Marquette Works in
Progress conference for their insights and suggestions, particularly Howard Gadlin and Melissa Manwaring. Particular
thanks are due to Douglas Frenkel and James Stark, whose first rate writing on mediation got me thinking about whether
lawyers work in mediation is merely intentional technique, or might be indicative of deeper conceptual frameworks.
Special thanks also to the late Allen Axelrod, a noble presence for many years at Rutgers Law School, who in his usual
succinct, respectful and crystaline way got me to restructure the entire article. All misguided and other erroneous
thoughts and expressions remain my own.
FOUR WAYS OF LOOKING AT A LAWSUIT: HOW LAWYERS CAN USE THE
COGNITIVE FRAMEWORKS OF MEDIATION
Jonathan M. Hyman
*
Rutgers Law School - Newark
Abstract
When lawyers represent clients in the process of mediation, tensions may
arise between the goals and actions of the mediators and those of the lawyers.
Mediators may be seeking to find ways to create new value for the parties, beyond
a simple compromise of their legalistic claims and defenses. Or they may be
seeking to repair or improve the parties relationship. Or they may wish to lead
the parties to greater mutual understanding. But lawyers often seem to be limited
to an adversarial, legalistic approach, looking only for some minimal or
reasonable compromise and standing in the way of the mediators other goals.
These tensions run deeper than a difference in goals or tactics or techniques.
They arise from different cognitive frameworks about conflict and ways to deal
with it. The cognitive frameworks, often operating tacitly and without an actors
conscious awareness, create different and competing perceptions of what is
relevant and what is appropriate to do. The mediation literature has articulated
four different, if overlapping, cognitive frameworks for dealing with conflict in a
mediation setting: distributive compromises, creating more value for all,
changing relationships, and increasing the mutual understanding of the parties in
conflict. Four examples of conflicts between mediators and lawyers, drawn from
stories of actual mediations, demonstrate these conflicting frameworks.
Understanding the cognitive frameworks reveals ways in which lawyers
can operate congruently with mediators, rather than in opposition to them. The
cognitive frameworks are versions of ways that people lawyers included
ordinarily have available to deal with conflict. There is nothing inherent in
legal thinking that prevents lawyers from shifting into non-adversarial
frameworks in a mediation, although the shift can be challenging. Similarly, a
lawyers ethical obligation to act in a clients interest does not stand in the way of
a lawyer inhabiting one of the alternative frameworks. Indeed, because the
alternative frameworks can actually serve a clients interests in ways not easily
FOUR WAYS OF LOOKING AT A LAWSUIT 2
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Persuading the mediator of the rightness of the clients cause can be part of this task, but only in an indirect
manner. Despite her formal impartiality, a mediator who sees the correctness or virtue of the clients claims may engage
in a variety of actions that could influence the other party to come around to what the client wants. For instance, the
mediator might subtly or not so subtly indicate her views on the legal merits of the clients claims, thereby inducing the
other party to make some concessions in his bargaining positions. The mediator might indicate her views of the
unfairness with which the client was treated, or the fairness of the settlement terms proposed by the client. Even without
an explicit opinion, such views might be subtly conveyed through tone of voice, facial expressions, body language and
control of the agenda of discussion. As useful as such persuasion might be to the client, persuasion of the neutral is still
only one step in the process of trying to persuade the other party to do what the client wants, not an end it itself.
achievable within an adversarial, distributive approach, lawyers have a moderate
ethical obligation to seek to use alternative frameworks within a proper
mediation setting. But it is not easy to shift from one framework to another
simply by intending to do so. I suggest that paying attention to certain categories
of things discussed in mediation is a practical way to identify and influence the
operative framework. Certain subject matters, such as what happened in the
past, what will happen in the future, legal meaning versus moral meaning,
feelings, relationship, and how the parties intend to move into the future, tend to
be distinctive for different frameworks, both partially constituting a framework
and leading others into it. Beyond the questions of whether lawyers can mentally
inhabit the alternate frameworks, whether they ethically may use them, and
whether they ethically should use them, attending to the subject matters thus can
give lawyers a technique for how they can move between frameworks.
INTRODUCTION
The growth of mediation has significantly challenged the lawyers craft of representing
clients. What should a lawyer think and do while appearing with a client at a mediation session?
The actions appropriate for a trial or similar adjudicatory hearing may be largely out of place
before a mediator. In mediation, satisfaction of the clients goals can only come about through
voluntary agreement by the other parties to the dispute, not by persuading a neutral decision-
maker of the rightness of ones cause. Nor will the actions most appropriate for bilateral
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negotiation always serve the interests of the client. The presence of the mediator changes the
dynamics of the negotiation process, and can throw out of kilter the moves that might be most
effective in simple bilateral negotiation. But mediation is an opportunity as well as an obstacle.
It gives the lawyer options that are unavailable in adjudication and rare in negotiation. Lawyers
need to know how to seize these opportunities.
For a recent and wide-ranging collection of advice to lawyers about mediation see HANDBOOK ON
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Mediation (Thomas E. Carbonneau & Janeatte A. Jaeggi eds. 2006), including, among others, articles such as Joel E.
Davidson, Successful Mediation: The Dos and Donts, in Id. at 71-76 and Karin S. Hobbs, Attention Attorneys! How
to Achieve the Best Results in Mediation, in Id. at 177-184.
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Jean R. Sternlight, Lawyers Representation of Clients in Mediation: Using Economics and Psychology to
Structure Advocacy in a Nonadversarial Setting, 14 OHIO ST. J. ON DISP. RESOL. 269 (1999) (reviewing recent cognitive
science about negotiation and decision-making for insight into how lawyers representing clients in mediation can be
more effective.)
4
Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 HARV.
NEGO. L. REV. 103 (2005); HAROLD I. ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVING
PROCESS (2004). (setting out the goals and methods a lawyer representing a client can use in mediation to capture
opportunities for value-creating resolutions.) For an approach to advocacy in mediation that is comprehensive and
insightful, but perhaps somewhat less systematically conceptual, see JOHN COOLEY, MEDIATION ADVOCACY ( 2002 )
([T]he role of the mediator involves instinctive reactions, intuition, keen interpersonal skills, and sensitivity to subtle
psychological and behavioral indicators as well as logic and rationality. Id. at 4.)
See, e.g., ROBERT P. BURNS, A THEORY OF THE TRIAL (1999); THOMAS A. MAUET, TRIAL
5
TECHNIQUES (4 ED. 1996); ALBERT J. MOORE ET AL., TRIAL ADVOCACY: INFERENCES, ARGUMENTS AND
TH
TECHNIQUES (1996).
See, e.g., ROBERT MNOOKIN, ET AL, BEYOND WINNING (2004); G. RICHARD SHELL, BARGAINING
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FOR ADVANTAGE (2007); CHRISTOPHER HONEYMAN & ANDREA SCHNEIDER, THE NEGOTIATORS FIELDBOOK (2006).
The mediation field is just beginning to articulate what lawyers should think and do
while representing clients in mediation. We have lists of dos and donts, and a wide collection
of war stories and suggestions. Some scholars have developed systematic approaches to the
2
problem, primarily focusing on using mediation to overcome various strategic, cognitive, and
emotional barriers to negotiated agreement. Others urge lawyers to use mediation for
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developing enhanced settlement proposals, ones that would serve the interests of the parties
better than simple compromises of bargaining positions. These are sound developments. But
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the field has not yet reached the stage of conceptual maturity it could have. Trial practice has
received a much more thorough treatment, effectively putting together both general concepts and
advice about specific actions. Negotiation by lawyers, drawing on extensive and continuing
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research in economics and psychology, has also received extensive treatment that is both
conceptual and pragmatic, and quite different from our models of trial practice. Representation
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of clients in mediation draws on both persuasive legal advocacy and artful negotiation, and yet
does not fit well with either. It seems to be terrain in which the advocacy moves of trial practice
and the techniques of negotiation collide. The mixture of these two sets of ideas produces a kind
of conceptual fog.
It would be desirable to burn the fog away. This article is an attempt to do so by
advancing a relatively systematic and coherent account of what representation of clients entails
in the distinctive process of mediation. Such an account should not be limited to the models of
trial practice and negotiation. The task is made more complex by the fact that mediation theory
has become extremely wide-ranging and varied. Many different concepts and modes of practice
compete for attention and application. This article is preliminary and does not purport to
advance a full theory of representation in mediation. It attempts to sketch out a possible theory,
however, by articulating an underlying structure that can encompass the variety of approaches to
mediation and make them available to lawyers, both conceptually and practically.
Roughly speaking, the varied approaches to mediation can be divided into four
categories. Some mediators and mediation focus on using mediation as an opportunity for the
parties to negotiate in a distributive, positional manner. I will call this a Distributive framework.
It is by far the most familiar framework, and the one in which most lawyers are inclined to work.
It is probably the only one that most lawyers would recognize. A second category uses
mediation to uncover the parties underlying real world interests and needs, and uses those
interests to craft agreements that will provide more tangible benefit to the parties than a simple
distributive negotiation. This is a Value-creating framework. Still others treat the prime purpose
of mediation quite differently, as an opportunity to repair or improvement of the parties
relationship. This is a Relationship framework. The fourth category I will call Understanding.
It uses mediation as an opportunity for the parties in conflict to increase their understanding of
themselves and the others enmeshed in conflict with them. The parties use their increased
understanding to make decide what to do about their conflict. Whether they reach an agreement
that resolves their dispute is less important than increasing their mutual understanding of it.
Understanding and distinguishing between these four categories is important for
mediators. It is equally useful for lawyers who represent parties in mediation. The categories
can guide lawyers in deciding how to plan, how to prepare their clients, and what to do in the
JEFFREY KRIVIS, IMPROVISATIONAL NEGOTIATION (2006).
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mediation itself. The task for lawyers is to recognize and become adept in working in each of
these modes of thought and action.
I propose that the categories are more than matters of convenience. They are coherent
cognitive frameworks, each embodying characteristic mental ways of organizing information
and stimulating action. Each is a distinct field of tacit knowledge. The frameworks enable
lawyers to make quick, almost unconscious decisions about what to say and do; depending on
the framework, certain actions seem obvious and certain information seems quite relevant, while
other information and action seems inappropriate, if it comes up at all.
To illustrate the frameworks and some of their differences I begin in Part I with four
examples of how lawyers act in mediation, adapted from a book that describes actual
mediations. In each, the lawyer and the mediator act at cross purposes. The lawyer handles the
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situation in ways that upset the goals the mediator seeks to achieve. Each is an example of
lawyers using a different mental framework from the mediator, or using a framework in a
different manner. The resulting conflict is not just a conflict of goals and methods. It is a
conflict of ways of understanding mediation and the process of disputing.
In Part II I describe the concept of frameworks in more detail. I show how the conflict
between the lawyers and the mediators depicted in the examples arises from the fact that the
lawyers and the mediators are using different frameworks. They are probably not seeing
things in the way the others in the room do.
Once we understand that the tension between lawyers and mediation is a mismatch of
frameworks, we face the question of whether the discrepancy is inevitable. If lawyers could step
into one of the alternative frameworks, their work in mediation could become consistent with the
framework that the mediator might be using, rather than staying at odds with it. Moreover, a
lawyers facility to move between frameworks is important even beyond the question of
avoiding conflict with mediators. It might be important for lawyers to adopt one of the
alternative frameworks, regardless of what framework the mediator happens to be using.
Precisely because mediation can provide such a rich variety of alternative frameworks for
Between mediator technique and lawyer technique
Legal reasoning and distributive, positional negotiation have analogous logical structures. Both
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involve categories with dividing lines between them. See text at note 44, infra.
dealing with conflicts and disputes, it offers benefits to clients and to our system of disputing,
beyond those that adversarial adjudication or even distributive, positional bargaining can
provide.
But urging lawyers to inhabit these alternative frameworks raises a number of questions:
Can lawyers actually think in the alternative frameworks? Their legal training and experience,
their sense of role, and the logical and distributive nature of much legal work may make it
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mentally difficult, if not impossible, to embrace any of the alternative frameworks. In Part III, I
discuss why legal reasoning and lawyers mental habits should not disable them from adopting
one or more of the alternative frameworks.
Even if they can think and act in a variety of frameworks, ethical constraints of lawyering
may prevent lawyers from doing so. Thus, the next question is whether lawyers may ethically
adopt alternative frameworks when they are acting as the representative of a client in a
mediation. Part IV describes why it is ethically permissible to do so.
Part V takes up a related ethical question. Should lawyers seek to adopt the alternative
frameworks? Even if it is permissible to do so, client objections, or lawyers own personal
dislike of the alternatives, may inhibit them. I argue that the benefits that the alternative
frameworks of mediation, both to clients and to our systems of dispute resolution, are substantial
enough to impose at least a modest obligation on lawyers to try to use them.
The final question is how lawyers can bring the alternative frameworks into the
mediation room. If frameworks are a form of tacit knowledge, it may be difficult for lawyers to
consciously put them on or take them off like a suit of clothes. When mediators practice them,
the frameworks may be seen as complex attitudes and skill sets that can only flourish after years
of dedicated practice. But lawyers may have to adopt a variety of different frameworks without
a longstanding dedication to one or another. In Part VI, I suggest a more accessible way for
lawyers to at least begin to enter different frameworks. The guideposts are the subject matters
that are discussed during the mediation. Certain subject matters are more distinctly part of some
frameworks than they are of others. By observing the kinds of subject matters that are discussed
KRIVIS, supra note 7. I have used disputes described by Krivis, as well as some of the negotiation
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dynamics, but have imagined actions by lawyers in the mediation that Krivis does not describe. Krivis focuses on
what mediators have done in the various situations he describes. I add accounts of lawyers to change the focus to
in a mediation, a lawyer can pick up which frameworks may be operating in the room. By
bringing up certain critical subject matters herself, or by continuing to discuss those subject
matters in more depth and breadth as a mediation progresses, a lawyer can influence the
mediation to move into, or to stay within, a particular framework. I identify seven key subject
areas for mediation discussion. They are:
i.) What happened and what it meant;
ii.) What can or will happen in the future;
iii.) Law and legal rights;
iv.) Fairness and moral rights;
v.) Relationship;
vi.) Feeling; and
vii.) What someone wants, what they can get, and how they can get it.
These subject matters do not each belong exclusively to one of the frameworks. Some can
appear prominently in several; the particular content that is discussed within a subject matter
may vary in different frameworks. They are only a suggestive diagnostic tool for identifying a
framework in operation, not a definitive one. Similarly, if a lawyer or mediator were to move
the discussion into one of these subject areas, or to continue talking in a subject area when the
others seem ready to change the subject, it will not guarantee that the mediation or its
participants will stay, or move into, the particular framework associated with the subject matter.
But the subject areas do provide a reasonably accessible way for lawyers to try to guide the
mediation and the other parties into a desired framework.
I. FOUR SCENES FROM A MEDIATION
To describe the ways in which lawyers can operate at cross purposes with mediators and
mediation, I have set out four different mediation incidents, inspired by a recent book describing
a variety of mediations. Each highlights a different model or framework of mediation. Each
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what lawyers can and should do in mediation.
In Kriviss story from which this account is adapted, the plaintiffs lawyer initially refused to
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disclose medical information showing that the defendant was legally blind. The defense lawyer was not yet aware of
the information, and the plaintiffs lawyer wanted to save it for surprise at trial. The mediator persuaded the
plaintiffs lawyer to disclose to the defense lawyer, thus substantially increasing the defendants settlement offer.
KRIVIS, supra note 7, at 154.
produces a different kind of conflict with a lawyer.
Incident 1 The Automobile Accident: The dispute is about an automobile
accident at an intersection. The defendants car was making a left turn when it
collided with the plaintiffs car, which was traveling in the opposite direction.
The plaintiff alleged that the defendant had made the left turn without looking.
By way of defense, the defendant alleged that the plaintiff had been speeding. The
plaintiff suffered several broken ribs and some bruises and sprains and had some
residual stiffness. He demanded $1 million in damages. The defendants lawyer,
however, offered only $3,000 to settle the personal injury claims, giving as
reasons the following facts: Under comparative negligence, the plaintiff was
probably more than fifty percent responsible, because of his speeding, and thus
entitled to nothing; plaintiffs medical insurance had paid for plaintiffs medical
expenses; and plaintiffs personal injury lawyer was known to make extreme
demands in settlement negotiations, only to settle on the eve of trial after making
huge concessions.
The mediator sought to deal with the huge gap by meeting with each side
separately (commonly called caucusing), expressing her opinion to each that their
settlement positions were way out of line, were not supported by the facts, and did
not reasonably reflect the likely outcome at trial. In her view, the extreme
settlement positions were taken only as a hardball negotiating strategy of dubious
effectiveness. Despite the mediators interventions, the lawyers refused to change
their settlement positions.
10
See LEIGH L. THOMPSON, THE MIND AND HEART OF THE NEGOTIATOR 34-35 (3D ED. 2005)
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(describing research showing that the rate of negotiation concessions increases as negotiators near their final
deadlines, and that negotiators believe deadlines are a strategic weakness.) See also William Zartman, Timing and
Ripeness, in THE NEGOTIATORS FIELDBOOK 143 (Andrea Kupfer Schneider & Christopher Honeyman, eds.2006).
The lawyers in this example may well have been using the mediation primarily as a device to obtain
information from the other side, a kind of free discovery, rather than as a strategic step towards immediate
settlement. If so, they had little interest in reaching an agreement at the mediation itself. But they were probably
still operating in a distributive framework, using mediation to gather information to seize the largest possible share
(or give up the smallest possible share) when the matter is settled, as it probably will be, later and closer to trial.
Did the lawyers do the right thing? In this instance, they were negotiating with highly
positional strategies within a distributive framework. The framework was distributive in that the
lawyers were negotiating about a single issue: the dollar amount of the settlement payment to the
plaintiff. The issue was subject to a constant sum distribution: each dollar more to the plaintiff
was an equivalent dollar less to the defendants insurance company. The lawyers strategies
were positional in that their work consisted primarily of taking negotiation positions $1 million
and $3,000, respectively with the aim of inducing large concessions from the other side, while
conceding as little as possible themselves. The lawyers seemed to have a love of deadlines as a
tactical negotiating tool; they expected that the other side would not make the largest concession
in their position until trial was upon them.
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The mediator was also operating in a distributive framework. She was treating the size
of the settlement payment as the only issue to be negotiated. And she accepted that the
settlement funds were to be distributed in accordance with the negotiating positions taken by the
lawyers. What she was trying to do, however, was to speed up the process of making mutual
concessions, to get to an agreed settlement number well before the eve of trial. She was trying to
wean the lawyers from their highly competitive positional tactics. The conflict between the
mediator and the lawyers was about how to play the tactics of the positional, distributive game.
Incident 2 The Real Estate Purchase: A religious school negotiated to purchase
a building. There was some written communication between the school and the
building owner, but before a formal real estate sales contract was signed, the
owner signed a sales contract, for a higher price, with a commercial real estate
buyer. The schools lawyer claimed that the school had a binding agreement to
In the case that inspired this example, the school was a religious one and the mediator wore a
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kippah, despite the fact that he was not an observant Jew, to elicit trust from the schools director. That effort
seemed to work. The conflict was resolved by completing the sale of the property to the new buyer, who then leased
the property to the school. Id. at 114-123. I have added the objection from the buyers lawyer, which does not
appear in Kriviss account. Such an objection is consistent with a distributive, positional approach to negotiation,
rather than one based on the parties underlying needs. In a positional, distributive approach, it is important to
conceal information that could damage ones negotiating position.
DAVID LAX AND JAMES SEBENIUS, THE MANAGER AS NEGOTIATOR 88-116 (1986).
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purchase the property. The owners lawyer alleged that any communication
between the school and the owner, whether oral or written, was no more than
preliminary negotiation, and was not legally binding.
At a mediation of the dispute, which included the school, the building owner, and
the third party buyers, the mediator sought to find out what plans the third party
buyer had for the property. The buyers lawyer said that was private
information and told the buyer not to discuss it.
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Did the buyers lawyer act effectively? Like the lawyers in the first incident, the buyers
lawyer here was apparently operating in a distributive, positional framework. In that framework,
one should be reluctant to reveal private information, because the other party might use it for
tactical advantage. Information about ones plans could be used to ones detriment in a number
of ways. Any settlement positions taken by the new buyer need to be credible. Information
about the buyers plans might suggest that the buyers expressed settlement position was a bluff.
The school would have then been less likely to agree to the buyers settlement terms.
Unlike the first incident, however, the mediator here was not simply trying to speed up
the exchange of concessions. Instead, the mediator can be understood to have been operating in
an entirely different framework: value creating or interest-based negotiation. This framework
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conceives of negotiation and mediation as an opportunity to expand the pie, not just to
distribute it. The mediator was looking for greater substantive efficiency, trying to find or invent
exchanges that would make at least one party better off than they would have been with no
agreement, while at the same time not diminishing the agreements value to the others. The key
ROGER FISHER, ET AL., GETTING TO YES 56-80 (2D ED. 1991).
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In the case from which this example is drawn, the new owner did not immediately need the
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building for another use. He was thus in a position to take title and then rent the property to the school. The
interests of both were satisfied without having to decide or compromise on the issue of who was legally entitled to
the property, or how many dollars would be required to get the school to drop its lawsuit. See KRIVIS, supra note 7.
Id. at 92 ff. In Kriviss story, the plaintiffs lawyer objected to talk about relationship, but
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shrugged, gave in, and fell silent when the mediator got the creditor interested in how to preserve his friendship with
the debtor. The mediator moved to a relationship framework by closing the lawyer out of the conversation, rather
than having the lawyer participate.
is to identify interests of the parties that are complementary, and not entirely in conflict. By
understanding their underlying needs and interests, the parties can invent options for mutual
gain, The mediator in this instance asked about future plans to see if, in some way, the plans
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of the new owner might be satisfied without requiring the school to give up its needs.
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Incident 3 The Carwash Loan: The plaintiff and the defendant had known each
other for several years, attending the same church and seeing each other at their
childrens athletic events. The plaintiff loaned the defendant $30,000 to purchase
and operate a carwash. When the defendant failed to repay as provided in the
loan agreement, the plaintiff brought suit.
At the mediation, the mediator began to ask questions about how the plaintiff and
defendant came to know each other and what kind of contact they had apart from
the loan. The plaintiffs lawyer intervened, stating that the questions were
irrelevant to the case at hand. She asserted that the plaintiff had a very strong
case, that she was hired to collect the debt, and that the mediator was just trying
to get the plaintiff to make an unnecessary concession for the sake of
friendship.
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Here, again, the lawyer was operating in a positional, distributive mode, looking to
maximize the amount of the financial settlement. She expressed her worry that her client, out of
See id. at 7 ff. In Kriviss account of the mediation of the discharge of an employee, the defendant
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rather than the lawyer objected to having the plaintiff talk about why the discharge had been so difficult for him,
fearing that such talk would make the proceeding a therapy session rather than a settlement. The defense lawyer was
friendship, would make a concession that was not required either by the legal strength of the case
or by the negotiation dynamics. Was she acting appropriately for a mediation?
This mediator was operating in a yet a different framework. Rather than trying to speed
up the positional negotiation dance, and rather than trying to create value by working with
underlying needs and interests, the mediator was exploring the relationship between the parties.
She could have been asking herself how it came about that two people who had both a social and
a business relationship got into the situation in which they could not resolve the issue of the
payment of the debt. Was there something about the way they related or communicated that
caused or perpetuated the conflict? Looking forward, they would probably continue to have
some kind of relationship, even if their business arrangements were terminated. Would that
relationship be a satisfactory one, or would acrimony from their dispute unnecessarily poison it?
Could the mediation be an opportunity for clarifying and improving the relationship between the
disputants?
Incident 4 The Promotion: A fifty-two year old employee failed to get a
promotion and a raise. She claimed that she was denied the promotion because of
her age and because she had complained about certain company practices that she
thought were immoral and possibly illegal. She also claimed that her supervisor
had, because of her age, failed to assign her work that would demonstrate her
competence.
The companys lawyer and the head of its human resources department appeared
at the mediation. The employees supervisor did not. The mediator asked the
company to have the supervisor attend. The companys lawyer refused, saying
that this wasnt going to be a group therapy situation or an opportunity for the
employee to get free discovery.
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willing to hear the plaintiff, however, and the matter ultimately settled.
The mediation might produce more information than a deposition, because a deposition in limited
18
to what is legally relevant. The matters discussed in the mediation is limited only by the will of the participants and
the mediator. The mediation might also produce less information, since a witness is required to answer relevant,
non-privileged deposition questions, but can refuse to speak in a mediation.
The lawyer was operating in the familiar distributive, positional mode. Was this good
lawyering? Information is a key element in positional negotiating. Each side seeks to obtain as
much information about the other as it can, while concealing information that would undermine
the credibility of ones commitment to a negotiating position, or would give the other side
additional negotiating leverage. If the supervisor were to speak in the mediation, she might
have revealed information about what happened or about herself that would show the
employees legal case to be stronger than the employees lawyer might have otherwise assumed.
With a more optimistic view of the outcome of the case, the employee would have been less
likely to settle for the small amount that the defendant would prefer. The mediation was not
critical for the disclosure of information: If the matter had proceeded to pretrial discovery, the
employee would have been able to take the supervisors deposition and get some of the same
information. But depositions cost the employee money, and she could use any money saved
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for other pretrial preparation, or to avoid the demoralizing effect of incurring large expenses
along the laborious road to trial.
The mediator, however, was using a fourth framework. Rather than focusing on
information about the possible outcome of a trial, which would be used for positional jockeying,
the mediator was seeking to learn how the participants understood what happened, how they
understood the other parties to the conflict, and how they understood themselves. In what ways
did the employee and the supervisor each misunderstand the other? What did each expect from
the other, and from themselves, that got them into the conflict in the first place. What did they
expect now that prevented them from managing the conflict without litigation? By increasing
understanding, the mediator aimed to help the parties develop their own, more effective ways of
dealing with others, with conflict situations, and with themselves. The conflict initially arose
between the employee and the supervisor, although it was most likely linked to a web of
BERNARD MAYER, BEYOND NEUTRALITY: CONFRONTING THE CRISIS IN CONFLICT RESOLUTION
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248-279 (2004) (arguing that there is a place for adversarial lawyers in a good conflict management process,
although it seems to require that lawyers direct their efforts somewhere other than the mediation room itself.)
situational factors and the expectations of others. Dealing with the conflict in this fourth
framework cannot be done without the direct participation of the people who were there at its
inception.
The foregoing scenes pit mediators and lawyers against each other. In each, the lawyer
operated in a way that thwarted the methods used by the mediator. In the midst of a process
designed to manage conflict and resolve disputes, mediators and lawyers found themselves
engaged in a conflict about the process itself. Is this conflict inevitable? Are lawyers
commanded by their ethical obligations to act in the positional, distributive manner described,
regardless of how the mediator is treating the situation? Is there something about the way that
lawyers think and make decisions that inevitably keeps them in the positional, distributive
mode? The conflict presents a normative question as well. Should lawyers and mediators work
in conjunction with each other, rather than at cross purposes?
In my view, the conflict is neither necessary nor desirable. Lawyers representing clients
in mediation can and should be able to work with the same focus and the same goals as
mediators. And this is not simply because conflict makes people uncomfortable or should be
avoided. As many mediators know, conflict is not necessarily bad. It can be used to build better
situations and better outcomes. Perhaps the tension between lawyers working in an adversarial
mode and mediators working in a more collaborative one produces something that is better than
either working alone or in congruence with the other. But I think that it would be better for
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lawyers and mediators to work congruently. Mediation has benefits for people in conflict
substantially different from and beyond what legal adjudication and the adversary process can
provide. Lawyers who cut themselves and their clients off from those benefits, by adhering only
to the distributive, positional ways of settling disputes, leave our dispute resolution system a
poorer place.
To explore how lawyers can work congruently with mediators, rather than in conflict
with them, we need to understand more fully the nature of the conflicts exemplified by the
For a sobering description of how assumptions about litigation and mediation get in the way of
20
satisfying client needs in medical malpractice litigation, see Tamara Relis, Consequences of Power, 12 HARV.
NEGOT. L. REV. 445 (2007) (arguing that pervasive assumptions about litigation and related actions prevent parties
from obtaining the benefits that they want and that mediation might be able to provide.) One might see my
arguments here as trying to articulate a path between litigation assumptions and those of mediation. The task is
made particularly complex because, in my view, there is not one model of mediation, but several.
See, e.g., Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 L. & POLY. Q. 7, 19-
21
20 (1986).
E.g., Leonard L. Riskin, Understanding Mediators Orientations, Strategies, and Techniques: A
22
Grid for the Perplexed, 1 HARV. NEGO. L. REV. 7 (1996) (hereinafter MediatorsOrientations) (noting that a
mediators interventions can be understood as choices between more facilitative or more evaluative interventions,
and between a broader or narrower definition of the problem to be addressed.) and Leonard L. Riskin,
Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE DAME L. REV. 1 (2003)
(hereinafter Decisionmaking in Mediation) (suggesting a move away from the facilitative-evaluative spectrum in
describing a mediators intervention, replacing it with a spectrum with one that runs from directive to elicitative,
instead. The new, new grid retains the broad to narrow scale in describing a mediators choices for how to
understand and address the dispute or conflict.)
E.g., ROBERT BARUCH BUSH & JOSEPH FOLGER, THE PROMISE OF MEDIATION (2D ED. 2005)
23
(describing the most important goal of mediation and mediators to be Transformative rather than problem solving.
Under this approach, the mediator does not seek a resolution of the dispute, but instead focuses on increasing each
incidents. In my view, the conflicts do not arise simply from personal or stylistic differences
between specific mediators and lawyers. They do not result from mediators and lawyers each
trying to seize personal control of the situation. Instead, they exemplify more fundamental
mental frameworks or schemas of conflict. The incidents can arise from basic differences
20
between the ways the lawyers and the mediators understand conflict and what to do about it. For
lawyers and mediators to work in concert, they need to share the mental frameworks and
schemas of the other.
II. THE MENTAL FRAMEWORKS OF MEDIATION
Mediation theory has exploded with a mind-boggling diversity of concepts and views. Is
mediation bargaining or therapy? Do mediators handle the narrow issues that the parties
21
present to them, or the broader range of issues, needs and interests that have driven the parties
into the dispute? Is the goal of mediation to bring the disputing parties to agreement, or just to
22
enable them to understand the other party better and become more effective in handling their
concerns themselves?
23
partys empowerment to solve their problems more effectively on their own, and each partys recognition of the
other partys situation, concerns and perceptions.)
GARY FRIEDMAN AND JACK HIMMELSTEIN, CHALLENGING CONFLICT: MEDIATION THROUGH
24
UNDERSTANDING (2008).
I think this welter of voices can best be understood in terms of four distinct mental
models or cognitive frameworks of mediation:
(i.) Distributive negotiation through positional methods;
(ii.) Value-creating negotiation through interest-based methods;
(iii.) Relationship; and
(iv.) Understanding: A variety of methods or approaches that focus on increasing the
parties understanding of themselves, the others in the conflict, and the situation. (For
lack of a single term in the literature, I will call this fourth category Understanding,
although it is not limited to the specific, so-named Understanding method developed
by Gary Friedman and Jack Himmelstein. )
24
Each of these is exemplified by the mediators work in one of the incidents described
above. And in each incident, the conflict arose from the fact that the lawyer was operating in a
distributive framework with a highly positional method, while the mediator was operating in a
different framework (in the latter three) or in the same framework but at a different pace (the
first incident.) The question for lawyers in mediation is whether, in their role as lawyers for
clients, they can inhabit any or all of the various frameworks that mediators use, or whether they
are limited to the distributive framework and the competitive style that each lawyer exemplified
in the incidents.
By mental frameworks I mean something different from techniques or methods. The
characteristics of the four frameworks dividing the pie through distributive gamesmanship,
enlarging the pie with new options, considering and trying to improve the relationship between
the parties, and giving the parties greater perspective about each other are familiar to mediators
and students of mediation. But are these simply different techniques, used by mediators in a
haphazard fashion, according to personal preference or habitual response? Do mediators pick
them for instrumental reasons, such a focusing on relationship to soften a partys resistance to
Leonard Riskins grids, whether old, new old, or new new, conceptualize mediator choices of
25
action as sliding along several continuous scales, with no obvious breaking points. His model of a 2 X 2 matrix
along two scales tells us about differences in quantity, but does not help us decide whether mediators actions differ
in quality, or when differences in quality occur. See Decisionmaking in Mediation, supra note 22.
This kind of mental structure is sometimes called schema, or script. For a study of mediator-
26
like ombudspersons, using the concept Working Mental Model to describe the schematic mental blueprints that
practitioners use, see Kenneth Kressel & Howard Gadlin, Mediating Among Scientists: A Mental Model of Expert
Practice (forthcoming in NEGOTIATION AND CONFLICT RES.)
See THE PROMISE OF MEDIATION, supra note 23.
27
concessions in their negotiating position? Are the techniques best understood as arrayed across
one or two continuous scales, with a mediator picking and choosing along the scale as seems
appropriate?
25
As I use the term, mental frameworks are more distinct than that. I treat each as a
relatively coherent mental system. It tells the person operating within it mediator, lawyer, or
disputant what kinds of questions, statements, and interactions with the other disputing parties
make sense. Sometimes, the framework will be apparent to an actor, who will make a
26
conscious decision to say or so something appropriate for the framework she intends to use.
Someone using a Relationship framework, for instance, may say to herself that she needs to
know more about the parties relationship, and will consciously decide to seek relevant
information. Much more often, however, the mental framework operates in a tacit, unarticulated
way. Information about relationship will just seem more pertinent to an actor whose thinking is
structured by the Relationship framework. The actor will want to seek out more information
about relationship without making a conscious decision to do so, and perhaps by not even being
fully aware of what she wants to know or why. The Transformative approach fostered by
Baruch Bush and Joseph Folger, (a part of my Understanding framework) is challenging to
27
many mediators and lawyers precisely because it engages a different framework of thinking
both explicit and tacit from the Distributive framework that many mediators and most lawyers
inhabit. Transformative mediators refuse to make resolution of the dispute the goal of the
process or the measure of success. Whether they consciously articulate it or not, it is obvious to
them that the terms of possible resolution are of minimal importance. At most, the terms
Id. at 45 [W]e do not believe that [the different approaches to mediation] can be combined or
28
integrated, at either the theoretical or practical levels. In effect, each of these theories represents a coherent
viewpoint that guides ones view of both the meaning of conflict and the value of intervention. The coherent
viewpoint does more than guide the mediators view of meaning and the value of intervention. It also guides, often
tacitly, a mediators specific actions and statements in the mediation itself.
See, as examples from a huge literature, THE MANAGER AS NEGOTIATOR, supra note 13 and
29
GETTING TO YES, supra note 14, as well as BEYOND WINNING, supra note 6, and BARGAINING FOR ADVANTAGE,
supra note 6.
See MEDIATION REPRESENTATION supra note 4 and Lawyers Representation of Client in
30
Mediation, supra note 3.
become relevant late in the process, and arise from the parties own decision to use their greater
empowerment and recognition to structure a specific plan for what to do. For people operating
in a Distributive mental framework, however, it is equally obvious that one needs to pay
attention to possible terms of resolution from the very beginning of the process. The
Understanding framework, as exemplified by the Transformative model, is qualitatively different
from the Distributive, Value-creating and Relationship frameworks.
28
The four mental frameworks, as I describe them, are not watertight buckets, each
excluding the contents of the other. Many specific statements or actions can appropriately
appear in several of the frameworks. For instance, as just noted, a mediator thinking in a
Distributive framework may focus on the relationship of the parties. It might be useful to
encourage the parties to modify their settlement positions and elicit more distributive
concessions. But a mediator thinking in a Relationship framework would focus on the parties
relationship for intrinsic reasons, not just because the focus is useful for other purposes. For
such a mediator, the flaws in the parties relationship and communication would be seen as the
key issue.
The Distributive framework is well understood. One might even call it the default
framework, the model of conflict and conflict resolution that first comes to mind when people
think about the topic. And it fits well with disputed legal claims, since legal claims primarily
focus on whether one of the parties is entitled to take something from the other. The Value-
creating framework is also well developed, both in the field of legal negotiation and, more
29
recently, in guidance for lawyers representing clients in mediation. The Relationship
30
To examine the role of repairing or improving relationships in actual mediations, Dwight Golann
31
surveyed participants about relationship issues in their mediations. He found that relationship repair was articulated
as one goal, but usually not achieved in practice. It became secondary to other issues and other dynamics in the
mediation. I suspect that relationship issues were shunted aside because the participants were operating in either a
Distributive or a Value-creating framework, and the relationship issues simply could not keep their place in the talk
and decision-making that occurred. This remains a suspicion, since Golanns account does not, and could not,
provide the kind of detail about the mediations that would be necessary to examine this issue. Dwight Golann, Is
Legal Mediation a Process of Repair--or Separation? An Empirical Study, and its Implications, 7 HARV. NEGOT. L.
REV. 301 (2002).
framework may be more difficult to see as a separate cognitive entity. By Relationship I mean
31
something more than whether the parties are friendly or cordial or hostile to each other, or
whether they have some formal bond, such as belonging to the same family or same
organization. The concept encompasses more generally issues of how engage and communicate
with each other, as well as what expectations they may have about how each should relate to the
other. It can be an aspect of the latent causes of conflicts, when parties hostility and
dysfunction arises from aspects of their communication and relationship that they do not
perceive or understand. Relationship issues may be more difficult to understand as separate
cognitive framework because the parties relationship can appear in Distributive, Value-creating
and Understanding frameworks, as well. A mediator working in a Distributive framework, for
instance, may be concerned with how the parties are relating in the mediation itself: If they are
more comfortable with each other, or are communicating better, they should be better able to
make the kind of reciprocal concessions required to find a mutually agreeable settlement
position. Similarly, if the parties in a Value-creating framework are seeking to construct an
ongoing arrangement that will benefit both, the quality and effectiveness of their future
relationship will have an important bearing on the success of their agreement. In each of these,
the relationship issues are understood secondary to the dynamics of the primary framework,
important in an instrumental way to make the work in the primary framework more effective.
The Relationship framework, by contrast, gives primacy to understanding and dealing with the
parties relationship. As an example, a mediator who seeks to identify and resolve a latent
conflict between the disputants rather than distribute assets, increase mutual value, or enhance
mutual understanding seems to me to be working in a Relationship framework. The task of
Psychologist Kenneth Kressel has described as strategic a style of mediation in which the
32
mediator posits that the apparent conflict arises from a latent one, and makes it her task to bring the latent conflict to
the surface and change the expectations the parties have of each other and the way they communicate. Kenneth
Kressel, The Strategic Style of Mediation, 24 CONFLICT RESOL. Q. 251, 252, 257 (2007) ([T]he focus of the
mediators attention and activity [in the strategic style] is on ascertaining wehther there is an underlying or latent
cause that has fielded the parties conflict. The mediators intervention [in a child custody dispute] hinged on
surfacing a maladaptive communication pattern between the father and his children.) Kressel does not categorize
this style as drawing on a relationship framework, but I believe it appropriately fits within the relationship
framework I am describing here. The relationship framework gives special attention to problems in the relationship,
whether those problems are patent and known to the participants, and latent and only suspected by the mediator.
The tension between splitting apart things that should be kept together, and lumping together
33
things that should be kept apart, hovers over any effort to classify. A modern example is bird taxonomy, which is
undergoing substantial change, as some bird species are split into several new species (increasing the ability of
birders to add to the size of their life lists) and lumping together as one species groups of birds that had formerly
been known as separate. See http://www.wildbirds.com/dnn/IdentifyBirds/BirdTaxonomy/tabid/109/Default.aspx
(last visited January 3, 2008).
See note 24 supra.
34
See note 23 supra.
35
JOHN WINSLADE & GERALD MONK, NARRATIVE MEDIATION: A NEW APPROACH TO CONFLICT
36
RESOLUTION (2000) (describing conflict as growing out of the differing and competing stories, or narratives, that
each party uses to explain to themselves and to others what has happened, and further describing the mediation of
conflict as helping the parties develop a new narrative or story about themselves and the situation that will enable
them to do something appropriate and effective about the conflict and move on.)
Cheryl A. Picard & Kenneth R. Melchin, Insight Mediation: A Learning Centered Mediation
37
Model, 23 NEGOTIATION J. 35 (2007) (describing a method which seeks to learn more about how the conflict
threatens what is important to each party, permitting a shift in attitudes and space for creative action.)
the mediator is to reveal the latent conflict and resolve it. Getting the parties to a common
32
position, or finding new, mutually beneficial options, are not what the Relationship mediator is
about.
Some readers might feel that I have improperly split a single varied mental concept of
mediation into four distinct frameworks. Others may protest that I have improperly lumped
together mediation styles that should be kept quite distinct. This is particularly true for the
33
fourth category: Understanding. Not only does that include the Understanding model of Gary
Friedman and Jack Himmelstein and the Transformative model of Baruch Bush and Joseph
34
Folger, it also includes such approaches as Narrative Mediation and Insight Mediation Each
35 36 37
of these has features, goals, and operating assumptions that are different from the others. But for
See THE PROMISE OF MEDIATION, supra note 23, at 53 ([P]arties who come to mediators are
38
looking for and valuing more than an efficient way to reach agreements on specific issues.) and NARRATIVE
MEDIATION, supra note 36, at 90 (At the end of the mediation process many people are in a stronger position to
negotiate the details about settling the dispute themselves.)
ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON (2007).
39
our purposes, they share a key conceptual feature that distinguishes them from the Distributive,
Value-creating and Relationship frameworks: an emphasis on improved reciprocal understanding
between the parties. They treat this goal as an intrinsic one, not as an instrumental step to some
other goal such as reaching an agreement. They view the parties perception of the conflict as
malleable; through the mediation the parties may come to understand their conflict in a different
way, a way that comes from their own insight, rather than from the insights of the mediator.
These approaches also minimize the mediators direct role in solving the dispute, and maximize
the opportunity and responsibility of the parties to develop their own resolution. A Distributive
mediator might unilaterally develop a compromise position and influence the parties to accept it.
A Value-creating mediator might unilaterally see options for mutual gain that the parties have
not yet recognized, and use the mediation as an occasion to tell it to the parties. A Relationship
mediator may understand the parties latent conflict and show them what they need to do to
resolve it. But the mediators of the Understanding framework let the parties develop for
themselves ideas for how to move to a better future, and even to decide whether to resolve the
dispute or not. The Understanding framework has important similarities to the Relationship
38
framework. In the Understanding approaches, the conflict is seen to arise in part from features
of the parties relationship, and the conflict itself contributes to distorted or partial
communication. But the problems with the relationship are not the key feature of the
Understanding framework. For this framework, improving understanding will enable the parties
to improve or reshape their relationship as they decide.
The recent book by Roger Fisher and Daniel Shapiro about handling emotions in
39
negotiation provides a vivid example of the difference between Distributive, Value-creating and
Understanding frameworks. It recounts the story of Fishers advice to the buyer of a radio
station who was stymied by the refusal of one of the co-owners to sell. Fisher asked the buyer
Id. at 126.
40
what he knew about the recalcitrant co-owner. From the small amount of information available
nobody had asked the co-owner he inferred that the co-owner had roots in the community, a
growing family, and wanted to continue his work. Fisher advised the buyer to offer the co-
owner a position with the station after the sale, together with an enhanced sale price, because he
needed to have the co-owner take a smaller share of the business. The co-owner accepted and
the deal went through. The buyer was pleased, and gleefully told Fisher that the seller fell for
the negotiation move. The buyer understood the deal as a distributive, positional one; he
40
won by making the more clever positional move to induce the seller to agree. Fisher, however,
understood the deal as a Value-creating one. Using underlying interests, he constructed terms
continued work at the station that were high gain to the seller but low cost to the buyer and
thus created more overall value than any single cash amount would have done. For someone in
an Understanding framework, however, even this arrangement would have been unsatisfactory.
It would have failed because the buyer never got it. He never understood how the situation
looked from the perspective of the seller. He never understood enough about the seller or
enough about his own perceptions and bargaining style that had kept the parties from being able
to construct the appropriate sale terms. From an Understanding framework, the fact that the sale
was successfully accomplished would be secondary to the increased understanding that
permitted the parties to get there themselves.
I find this four part division plausible because it corresponds to four different kinds of
goals that can arise for someone in conflict. I do not mean legal conflicts. Instead, I refer to the
variety of ordinary conflicts that people regularly face in life. The conflicts might have legal
aspects, or might be expressed as legal claims or acted upon in a legal forum. But the ordinary
goals can exist, and usually do, regardless of whether one expresses them as legal issues.
First, someone experiencing a conflict may wish that their opponents in the conflict
would give in to them, taking the action or providing the thing that the first person wants. The
person needs the action to eliminate or at least assuage her sense of conflict or loss. Most
commonly, this would require the opponent to come around to the first persons position. The
Mary Parker Follett, Constructive Conflict in PROPHET OF MANGEMENT: A CLELBRATION OF
41
WRIITNGS FROM THE 1920'S 77 (Pauline Graham ed., 1995).
position might be a tangible object, or an amount of money, or ceasing an action that the first
person finds troublesome. This is the kind of goal sought by distributive, positional bargaining;
if you cant get a complete concession from the other party, at least you can seek one that gives
you as much of what you want as possible. It can also include nondivisible things, such as
bringing the other party around to the understanding that you are right, or that you deserve the
thing in question, although total victories such as this are less common in conflicts than
compromises.
The second kind of goal is to seek some kind of way to get what you want while
minimizing the loss or concession that the offending party must suffer to give it to you. A key
question for this kind of goal would be something like, Isnt there some way you can give me
that, or do that, without your having to hurt yourself to do it? Mary Parker Follett, one of the
founders of our modern understanding of conflict management, asked this kind of question when
she solved the problem of whether to open a library window by opening a window in an adjacent
room, thus giving the other library patron the fresh air he wanted but not imposing an unwanted
draft on her. That kind of problem solving goal seeks, as does our second framework, a value
41
creating solution.
The third kind of goal focuses on relationship. Finding themselves in conflict about
some object or action, people might be troubled by what the disagreement is doing to their
relationship. Their goal would be to stabilize or repair their relationship. We recognize this
more in family situations, including divorces, inheritance disputes, family businesses, and the
like, as parties seek to get past the conflict for the sake of maintaining some form of relationship.
We might expect to see it less often in workplace relationships, or between people with a service
relationship. We might see it even less, if ever, in conflicts between strangers. But even
between strangers, the parties may develop a relationship with regard to the conflict they
perceive between them, and wish to relate to each other in a way that does not fan the flames.
It is this disturbance of relationships that leads me to place apologies in the category of
relationship issues. Apologies, in the fullest sense of the term, involve reconstructing a
See NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 35
42
(1991) (Once the symbolic overture has been made [by offering an apology], the victim alone holds the keys of
redemption and reconciliation.); Carl D. Schneider, What it Means to Be Sorry: The Power of Apology in
Mediation, 17 MEDIATION Q. 265 (2000).
Jennifer K. Robbennolt, Apologies and Legal Settlement: an Empirical Examination, 102 MICH. L.
43
REV. 460 , 506 (2003). ( Full apologies were seen as mitigating potential damage to the relationship . . .)
For an example of using increased mutual understanding as a way to improve functioning in a
44
work setting, not limited to situations with a recognizable conflict, see ROBERT KEGAN & LISA LASKOW LAHEY,
HOW WE TALK CAN CHANGE THE WAY WE WORK: SEVEN LANGUAGES FOR TRANSFORMATION (2001) (explaining a
systematic method of increasing both self understanding and understanding of others so as to overcome interpersonal
and intrapersonal obstacles to more satisfactory functioning).
relationship between people. One person acted in a way that caused harm and/or an affront to
another. By the apology, the harm-doer seeks to correct the imbalance between them that the
conduct created. At their fullest, apologies recast the balance of power between the parties. By
his offending action, the offender has exercised unwarranted power over the other. But by
offering an apology, the offender reverses the power relationship. The recipient of the offense
now has power over the offender: the unconstrained power to decide whether to forgive. Thi s
42
relationship quality is most apparent in full apologies, which have been called apologies of
responsibility.
43
Finally, people in conflict might find themselves asking what could have gotten into the
other person that resulted in their taking such offensive action. They might be mystified and
frustrated by the fact that the others in the conflict seem so unable to understand things from
their perspective. Or they might even be a little surprised or disappointed by their own anger or
stubbornness, or sense of helplessness in the conflict. Their goal in this context would be to
have the others understand them better, and perhaps to understand the others better, as well:
They seek understanding.
44
These feelings and goals are part of our normal social lives. They may seem foreign to
formal disputing. But, as many mediators know, the ordinary dynamics of conflict do not drop
away when a dispute takes on the formal attributes of a litigation or mediation. The more
structured and formal conflict carries a cloud of ordinary social conflict dynamics with it. The
conflict management frameworks I have described operate in mediation for the same reasons and
in the same way as they operate in unmediated, informal conflict situations.
We now are in a position to see what it would take for lawyers to do their work in concert
with mediators, rather than in opposition to them. Drawing on their nonprofessional repertoire
for dealing with conflict, they could align themselves with the framework that the mediator is
using. To return to the incidents with which we began the discussion, we can see how the
lawyers could have entered into the framework used by the mediator and permitted or
encouraged the exchange of information that was pertinent to that framework, rather than
blocking it. The lawyer in the first example could seek to get through the exchange of
concessions and the modification of settlement positions quickly and fairly, finding a way to a
reasonable middle ground without delay and posturing. The lawyer in the second example could
work assiduously to articulate the underlying needs and interests of all the parties, and then work
creatively to find ways to meet the needs of one without sacrificing the needs of the other. In the
third example, the lawyer could welcome a fuller account of the parties relationship, with an eye
to understanding how repairing or improving the relationship might provide a path towards
resolution. And in the fourth incident, the lawyer could endorse a face-to-face encounter
between the employee and his or her immediate supervisor, under the guidance of a mediator
working in the Understanding framework, to see if a change in the antagonists narratives, or
their mutual (mis)understanding, or insight, or empowerment, could have released them from
their conflict.
Suggesting that lawyers engage in these alternative frameworks carries some important
questions. Can lawyers even do these things? Is it cognitively possible for lawyers who have
been trained in the rigorous forms of legal reasoning, and who think about their clients
problems that way every day, to work within these alternative mental frameworks as well? The
question is particularly challenging because the framework are not simply points along a
continuum, allowing a lawyer to slide up or down as one would tune a radio. Instead, each is
qualitatively different from the other, entailing a different mind set. Moving from one to another
might be more like an actor taking on diametrically different roles on consecutive nights in the
theater, magnified by the fact that each role had to be played extemporaneously, without
memorized lines. Some remarkable kind of shape-shifting seems to be called for. I will take up
Leonard Riskin, Mediation and Lawyers, 43 OHIO ST. L. J. 29 (1982).
45
the question of whether lawyer can work within these frameworks.
Beyond the question of whether lawyers can mentally do this, we face the question of
whether such differing mental frameworks are ethically permissible. May lawyers operate
within these frameworks? Or do the ethical rules and a proper sense of role require lawyers to
remain within the distributive, positional mode exemplified by the lawyers in the examples?
The ethical question has another dimension as well. Even if lawyers may operate within
differing mental frameworks, should they do so? Or are they free to treat the possibilities as no
more than interesting ideas, something permissible for others to do, but not something they need
not bother themselves about?
Finally, we need to address the question of how lawyers can implement these mental
frameworks in their work in the mediation room. The potential ability to do so, the ethical
permission to do so, and even an ethical imperative to try, will amount to little unless the lawyers
can take actions that will bring the framework into the room. That is the last topic I will take up.
III. CAN LAWYERS THINK LIKE MEDIATORS?
We have many reasons to think that lawyers, representing clients in an adversarial
dispute, cannot think or act in ways that will craft new options for mutual gain, or will improve
relationships, or enhance self knowledge and knowledge of others. Some of these relate to the
cognitive and behaviorial tools with which lawyers do their work. Some relate to the ways many
people deal with conflict much of the time.
At the beginning of our modern interest in mediation, Leonard Riskin reminded us that
lawyers think differently from mediators, and the kind of thinking that mediators do remains
invisible to most lawyers. They just dont see it. The four mental frameworks I have described
45
in this article help us understand more clearly what that might mean. Legal reasoning is all
about mutually exclusive categories. The doctrines of law articulate the categories,
distinguishing legal rights from an absence of legal rights. Under the facts, the conflict situation
falls into one category or another. If the defendants actions and the plaintiffs situation fall
See generally, Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: the Structure
46
of Problem Solving, 31 UCLA L. REV. 754(1984).
CHARLES TILLY, WHY? 15 (2006).
47
within the category of a violation of the plaintiffs right, the plaintiff is entitled to a court-
ordered remedy. If the actions and situations do not fall within that category, the defendant is
free to proceed on her way with no more interference. As a logical matter, in each situation the
person with the complaint either falls within the category of legal right or does not.
Because of its binary categorical nature, legal reasoning, including the problem of
proving a legal claim, bears a strong structural similarity to the distributive concept of
negotiation. In litigation, if a legal claim is on the plaintiffs side of the divide, it cant be owned
by the defendant. In distributive negotiation, if part of an asset is negotiated to the claimants
side, it has been lost by the other claimant. Consequently, lawyers may have a difficult time
understanding how their client might give something to the other side without losing an
equivalent value of what is given, or, conversely, how they might ask the other side to give their
client something that would be a gain for their client without being an equivalent loss to the
other side.
46
The sociologist Charles Tilly describes a related conflict of frameworks that might
prevent a lawyer from being able to think beyond the distributive model of dispute resolution.
He points out that, when faced with trouble or an interpersonal problem to be dealt with, people
respond in one of four qualitatively different modes of talk. These are Convention, Stories,
Codes, and Technical Reasons. Although my description necessarily oversimplifies Tillys
47
subtle analysis, conventions are the kind of brief statement that we often make in a situation of
conflict, such as change is always hard, or hell get used to it. Stories are more extended
narratives, explaining what has happened and perhaps what should happen, often with a moral
implication or even an explicit moral point. Codes are the invocation of specialized sets of rules
and standards for dealing with the conflict. Technical Reasons, such as an engineers
explanation of why the construction cannot be completed without a redesign and greater
expense, rely on the objective determinations of technical disciplines.
Id. at 96ff.
48
Id at 108-114.
49
See generally Mark Umbreit et al., Restorative Justice in Action: Restorative Justice in the
50
Twenty-first Century: a Social Movement Full of Opportunities and Pitfalls, 89 MARQ. L. REV. 251 (2005).
Malcolm Gladwell, Heres Why, THE NEW YORKER, April 10, 2007, available at
51
http://www.newyorker.com/archive/2006/04/10/060410crbo_books.
Jeff Kichaven, Apology in Mediation: Sorry to Say, Its Much Overrated, available at
52
http://www.mediate.com//articles/kichavenJ2.cfm.
Lawyers address problems through Codes. They rely on legal reasoning which, as Tilly
48
describes it, is qualitatively different from conventions and stories. (In Tillys analysis, doctors
also use their codes, such as codes about differential diagnosis, to handle the problems that face
them. ) While the Distributive mediation framework is congruent with the logical structure of
49
lawyers codes, the other three mediation frameworks are more in keeping with Convention and
Stories as ways of dealing with conflict. In Malcolm Gladwells insightful account of a
mediation between a purse snatcher and his victim, he uses Tillys categories to show how the
interchange between the two comes to a satisfactory fruition when they change their mode of
talk. The mediation was part of a restorative justice session, held between the victim and the
50
defendant after the defendant had been found guilty but before he was sentenced. It was also
attended by the victims husband, and by the defendants partner and their infant child. The talk,
Gladwell notes, avoided the code talk of the law, and instead flowed into story telling that
elucidated cause and effect, with moral implications.
51
We can see a similar clash of types of talk in Jeff Kichavens account of a mediation
between a bank customer and a bank that had unwittingly destroyed the contents of the
customers safe deposit box, which may have included personal memorabilia such as love letters
or a lock of hair. The customers husband and co-renter of the box had died and the bank had
been unsuccessful in trying to find his widow. As mediator, Kichaven suggested that the bank
52
acknowledge the pain that its destruction of the boxs contents had caused, and apologize,
without admitting liability. The banks lawyer would not do so. Its lawyer stonily asserted that
the bank had no liability under the law. Although Kichaven did not explain it this way, with the
See WHY? supra note 47, at 22.
53
help of Tillys categories of talk we can see that he was trying to move the conversation from
one form to another. While the lawyer was speaking in Code, Kichaven tried to turn the
conversation to Conventions (such as The bank values its longtime customers and is distressed
when things go wrong for them. or Unfortunately, things sometimes slip through the cracks in
a bureaucratic organization, and were sorry for that.) or maybe to Stories (such as explaining in
some detail all the steps the bank took to keep this from happening and why its procedures,
which are usually beneficial, caused an unforeseen loss in this circumstance). The lawyer would
not move with him. It is noteworthy that in Gladwells story, by contrast, there was no lawyer in
the room, and thus no one invested in explaining things through Codes.
As strong as the tendency is for lawyers to think and talk in binary, either-or terms, or to
talk in Codes rather than Conventions or Stories, these attributes of lawyerly thinking do not bar
lawyers from entering into the Value-creating, Relationship or Understanding frameworks.
First, Tilly notes that when we give explanations, we do not limit ourselves to one mode of talk.
Several or all of them can be implemented over a single effort to explain, understand, and
justify. I will assume that, when they are acting in their personal roles, rather than their
53
professional ones, lawyers use Conventions and Stories just as other people do. While their use
of Conventions and Stories might be affected or reduced by their professional love of thinking in
Codes, it isnt eliminated. Lawyers may not want to use Conventions and Stories while acting as
lawyers, but there is nothing in the modes of talk, as Tilly describes it, that would prevent them.
More importantly, Tillys account of Codes may understate the degree to which lawyers
actually use Conventions and Stories as part of their work as lawyers. When lawyers are
assessing the scope and effect of a precedent, for instance, they may use convention-like reasons
to explain themselves, such as discounting a case because its author is a known judicial maverick
whose opinions do not carry much weight. Similarly, negotiation talk, through which most cases
are resolved, is filled with conventions about the negotiation process itself, even if the
underlying legal issues need to be addressed with legalese, i.e., Code talk. For instance, a lawyer
may refuse to give a new settlement proposal because she does not want to negotiate against
See, e.g., ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW 110-111 (2000)
54
(Law lives on narrative . . . the law is awash in storytelling. . . . questions and answers in . . . matters of fact
depend largely upon ones choice (considered or unconsidered) of some overall narrative as best describing what
happened or how the world works.) (emphasis in original)
Dedre Gentner, et al., Learning and Transfer: A General Role for Analogical Encoding 95 J.
55
EDUC. PSYCHOL 393 (2003).
herself.
Beyond such conventions, stories and story-telling often play an important part in
lawyers formal talk in the courtroom. Narratives are stories with beginnings, middles, and ends,
with accounts of a trouble or disruption, and with moral implications about the trouble and the
way to handle it. Effective trial lawyers use narratives in this kind of form to present cases to
juries, judges and other adjudicators. If anything, lawyers can explain why in Tillys sense
54
of the term with greater facility and elaboration by using narratives than simply by using
codes. Tillys categories help us understand the deep and qualitative differences that exist
between the four cognitive frameworks of mediation, and thus shed light on why it may be
difficult for lawyers to move beyond the Distributive framework. But Tillys categories do not
establish that the mental arsenal of lawyers prevents them from using the frameworks that are
needed for Value creating, Relationship and Understanding ways of mediating.
This is not to say that it is easy for lawyers to shift from their familiar Distributive
framework to one of the others. Negotiators have a difficult time implementing a value-creating
mode, even when the opportunity arises. Researchers have found, for instance, that when
negotiators were presented with problems that could be solved either by compromises, by trade-
offs, or by contingent agreements that actually added value (by capitalizing on the
contingencies), they tended to miss the contingent, value-adding agreements and rely on
negotiating for compromises, unless they had first been given negotiation training that used
guided analogies that demonstrated how to find more value through contingent agreements.
55
Other negotiation scholars have noted that people tend to negotiate in a value creating way only
when they have an expectation that strictly distributive bargaining will cost too much, or that
value creating negotiation will be more likely than distributive bargaining to produce a desirable
DEAN G. PRUITT & SUNG HEE KIM, SOCIAL CONFLICT:ESCALATION, STALEMATE, AND
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SETTLEMENT 48ff.(3D ED. 2004). (Problem solving negotiation is more frequently used when it is perceived as more
feasible. The perception of feasibility depends on a variety of factors, including the negotiators faith in his own
problem-solving ability, thinking in positive-sum, rather than constant sum, terms, and the other negotiators
perceived readiness for problem solving.)
The Restatement of the Law Governing Lawyers requires that lawyers exercise the competence
57
and diligence normally exercised by lawyers in similar circumstances. RESTATEMENT OF THE LAW GOVERNING
LAWYERS 52 (OFFICIAL DRAFT 2000) (hereinafter RESTATEMENT).
The American Bar Associations Model Rules of Professional Conduct have a similar requirement: A
lawyer shall provide competent representation to a client. MODEL RULES OF PROFL CONDUCT R. 1.1. (hereinafter
MODEL RULES). The Preamble to the Model Rules notes that [a]s an advocate, a lawyer zealously asserts the
clients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the
client but consistent with requirement of honest dealings with others.
result. Lacking that expectation in a particular situation, they will tend to use a distributive
56
framework and positional methods instead.
Thus, we cannot expect that lawyers will easily move away from the Distributive
framework and bring themselves into collaboration with mediators who are operating in one of
the other frameworks. But the obstacles to their move do not arise from something distinct about
their lawyerly thinking. They are the same obstacles that anyone who reacts to conflict in a
distributive manner would need to deal with.
IV. MAY LAWYERS THINK LIKE MEDIATORS?
Even if there is nothing in lawyers mental architecture that would keep them in
opposition to mediators, their ethical obligations might present obstacles. As agents for their
clients, and as professionals subject to the ethical standards of their field, they are obligated to
act diligently and loyally in pursuit of their clients interests. Does this mean that lawyers are
57
ethically bound to negotiate in a Distributive framework, using positional tactics to distribute the
maximum possible tangible value to their clients, regardless of the opportunities presented by
mediation? If so, lawyers would be ethically wrong to adopt Value creating, Relationship or
Understanding approaches. The lawyers in the four scenes that began this article would all be
acting properly, and would all run the risk of acting unethically if they were to abandon their
The literal language of the Restatement and the Model Rules, is somewhat ambiguous on the
58
question whether lawyers are limited to using a distributive approach to mediation. The Restatement speaks of
competence and diligence normally exercised, suggesting that lawyers are held to act as most other lawyers would.
If most lawyers limit themselves to a distributive framework, as I think is the factual case, perhaps lawyers who
move to a different framework would be flirting with incompetence. The Comments to Section 52 of the
Restatement, however, pulls the sting from such an interpretation by noting that competence does not require a
lawyer, in a situation involving the exercise of professional judgment, to employ the same means or select the same
options as would other competent lawyers in the many situations in which competent lawyers reasonably exercise
professional judgment in different ways. RESTATEMENT, supra note 57, Sec. 52 Comment b.
The term used by the Model Rules, competent, seems even less tied to the empirical question of what
lawyers normally do, and instead is mostly normative. The Preamble distinguishes between advocacy and
negotiation. The standard for advocacy seems limited to a distributive kind of approach, calling for the lawyer to
zealously assert the clients position, (emphasis supplied). MODEL RULES, supra note __. But the standard for
negotiation only requires the lawyer to seek a result that is advantageous to the client, suggesting that advantage to
the client might mean something different from position. Of course, the term position has two somewhat different
meanings in the context of lawyers work. In adjudication, it means a legally articulated claim of right or defense
against a claim. In negotiation, however, it means specific terms or demands to which someone seeks agreement
from the other party. The dual uses of the word make it easier to think that lawyers should take settlement positions
in negotiation just as they take legal positions in adjudication. That in turn makes it easier to think that lawyers
representing clients in mediation should focus on positions, using a distributive framework, as part of their
appropriate functions. As indicated in the text of this article, I do not think that the Model Rules require such a
limited transition from adjudication to negotiation/mediation.
positional approaches to adopt the different framework used by the mediator.
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It is easy to understand why distributive negotiation using positional methods seems to
embody diligence and loyalty. The Distributive framework is the only one of the four that
plainly sets the interests of the client against those of the other parties and will unhesitatingly
sacrifice the interests of others for the sake of the client. All of the others appear to consider the
interests, concerns and perspectives of the other parties in the conflict. A Value creating
framework depends on finding terms of agreement that increase value for the other parties as
well, or at least do not damage their interests. A Relationship framework necessarily attends to
the other parties in the conflict, since repairing or improving a relationship requires the
participation and commitment of all the parties. An Understanding framework entails mutual
perspective taking, since it aims in part to have the client understand more fully the perspectives
of the other parties, and develop insight into how the others might see the situation.
As between the Distributive and the Value creating frameworks, there should be no
general ethical need to choose the Distributive one. The ethical obligation that supports working
in the Distributive framework equally justifies working in a Value creating one. That is because
This is the Negotiators Dilemma. THE MANAGER AS NEGOTIATOR, supra note13, at 30. (The
59
central, inescapable tension between cooperative moves to create value jointly and comopetitive moves to gain
individual advantage); See also BEYOND WINNING, supra note 6, at 27. (The tension in creat[ing] value while
minimizing the risks of exploitation in the distributive aspects of negotiation . . . cannot be resolved. It can only be
managed.) (emphasis in original; footnote omitted.)
the Value creating approach to negotiation is aimed at increasing the tangible, primarily
economic return to the client. It asks the client to sacrifice no tangible value, only to craft
different ways to satisfy interests. A party that engages in value creating negotiations does so in
the hope that the newly developed terms of agreement will satisfy his needs more fully than
purely distributive negotiation might. And by seeking an agreement that does not require the
other party to sacrifice its interests, the chances of reaching an agreement are enhanced. Of
course, there are risks in using a Value creating framework. It requires disclosure of both sides
underlying needs, and thus creates risks that the other side will be less candid than is appropriate,
and will take advantage of the first sides disclosures to seize more value in a positional
manner. But this risk does not mean that lawyers need to avoid value creating negotiation. It
59
only means that they must negotiate in a skilled manner, using methods that will optimize the
chances that they can develop mutual gain without suffering avoidable loss.
The Relationship and Understanding frameworks, however, might be seen to present a
greater challenge to a lawyers ethical obligations to a client. While improving a relationship, or
achieving a greater understanding of self or other, might be of value to a client, they do not
provide the kind of immediate economic or other tangible value that distributive or value
creating negotiation can deliver. Restricted to their legal dimensions, legal disputes are about
transferring money or other tangible things, or about providing greater freedom of, or limitations
on, actions. They do not, and cannot, compel better interpersonal relationships or understanding.
But the principles of agency and the ethical obligations of lawyers do not limit lawyers to
obtaining tangible benefits for clients. The Rules of Professional Conduct, for instance,
explicitly permit lawyers to consult with clients about the ethical and moral dimensions of their
In rendering advice, a lawyer may refer not only to law but to other consdierations such as moral,
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economic, social and political factors, that may be relevant to the clients situation. R. 2.1, MODEL RULES, supra
note __.
See Warren Lehman, In Pursuit of a Clients Interest, 77 MICH. L. REV. 1078 (1979).
61
Talk of legal rights can be like talk of good and evil: the claimed legal rights are wholly justified,
62
and the opposition to the claim is wholly unjustified and without any merit, no more than a blatant claim of narrow
self interest. The Understanding framework, however, vigorously avoids such dichotomous thinking. Under that
approach, all the participants in the conflict may have some responsibility for the beginning or the continuation of
the conflict, and neither may be exclusively to blame.
choices. There is a strong tradition of concern for the clients personhood in legal ethics. So
60 61
long as the lawyers concern does not interfere with protection of the clients legal rights or
opportunities, concern for the other things the client may value, such as relationships or
understanding, is ethically permissible.
There is nothing in the latter three frameworks that necessarily sacrifices a clients legal
rights or opportunities. A client who wishes to improve or repair a relationship, and sees an
opportunity to do so in the mediation, may decide not to seek full vindication of her legal rights.
Perhaps the effort necessary for full legal vindication would interfere with the work required to
deal with the relationship. But even if it did not, vindication of legal rights may come to seem
less important once the relationship issues, which have been troubling to the client, have been
addressed. A client who understands the other more fully, or who changes her narrative of
herself and the situation, might gain sufficient perspective to realize that the story she has been
telling of her legal rights is not fully correct. Neither of these approaches cuts off the assertion
62
of legal right. Both leave open the possibility keeping legal rights as part of the discussion, and
part of the resolution, though not the primary or sole part. And both permit returning to claims
of legal rights and distributive bargaining if the alternative framework does not result in a
satisfactory way of dealing with the conflict. Someone working in a Value creating framework
should not pick the fruit of the value creating work unless it is better for them than what they
could obtain from alternative courses of action, whether that is distributive negotiation,
adjudication, or something else. Similarly, the Relationship and Understanding frameworks do
not burn bridges or deprive a party of the choice to reject the ideas that come form such
See Christopher M. Fairman, A Proposed Model Rule for Collaborative Law, 21 OHIO ST. J. ON
63
DISP. RESOL. 73 (2005); John Lande, Principles for Policymaking about Collaborative Law and Other Adr
Processes, 22 OHIO ST. J. ON DISP. RESOL. 619 (2007); Scott R. Peppet., The Ethics of Collaborative Law, 2008 J.
DISP. RES.131 and Sherri Goren Slovin, The Basics of Collaborative Family Law: A Divorce Paradigm Shift, 18
AMER. J. OF FAMILY LAW 74 (Summer 2004), available at http://www.mediate.com/pfriendly.cfm?id=1684.
processes.
The worst dangers are those similar to the Negotiators Dilemma: whether the disclosures
required for the effective use of the framework can be opportunistically used by the other side
for their unilateral distributive advantage. For instance, if a party acknowledges that she has
some responsibility for what went wrong, the other might try to use that acknowledgment to
lower the speakers confidence in a victory at trial and thus drive a harder distributive bargain.
But, with good legal advice, the speaker should be able to distinguish some moral responsibility
from legal risk. People may come to understand better how their thought and action contributed
to the problem without changing their mind at all about their lack of legal responsibility. As
with the Negotiators dilemma, the task is to manage the tension between the disclosures that are
part of the chosen framework and the other sides opportunity to use those disclosures for
unilateral advantage.
I have not found any ethical opinions or malpractice decisions holding that actions taken
in a Value creating, Relationship or Understanding framework are ethically impermissible or
grounds for professional liability. The closest ethical analysis I have found revolves around the
Collaborative Law movement. That is a growing practice in which lawyers structure
negotiations about a legal problem to avoid the adversariness that can prolong disputes and
produce less than optimum resolutions. The lawyers and their clients agree to focus on the
parties underlying interests and to meet together in an effort to develop mutually agreeable and
mutually beneficial terms of agreement. The key feature of the practice is a written commitment
by the lawyers to withdraw from representation if their work fails to produce an agreement and
the parties proceed to litigation. This commitment appears to be an effective way to deal with
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the Negotiators Dilemma. It reduces but does not eliminate the risk that the opposing lawyer
will seize the disclosed information for unilateral trial advantage, since that lawyer has
committed herself not to try the case. The formal reciprocity of agreeing not to continue
Colorado Bar Assn Eth. Op. 115 (Feb. 24, 2007), Ethical Considerations in the Collaborative and
64
Cooperative Law Contexts, available at http://www.cobar.org/group/display.cfm?GenID=10159&EntityID=ceth,
Id.
65
American Bar Association, Standing Committee on Ethics and Professional Responsibility, Formal
66
Opinion 07-447 Ethical Considerations in Collaborative Law Practice August 9, 2007. States permitting the
practice include Kentucky: Kentucky Bar Assn Op. E-425 (June 2005), Participation in the Collaborative Law
Process, available at http://www.kybar.org/documents/ethics_opinions/kba_e-425.pdf; New Jersey: New Jersey
representation through trial may also have some moral force in creating a feeling of safety and
eliciting more candid disclosures.
The ethical critique of Collaborative Law holds that the practice places lawyers in
conflict with their clients. By committing themselves to withdraw if the matter is not voluntarily
resolved but goes to litigation, the lawyers seem to be disadvantaging their clients in order to
satisfy a promise they made to their clients adversary. This tension has the same structure as
the tension between a Distributive framework and the others. The kind of candor and disclosure
necessary for effective use of a Value creating framework creates a risk that a Distributive
adversary will take unilateral advantage of the disclosure to the detriment of the disclosing party.
Thus, the ethical critique of Collaborative Law suggests that lawyers cannot manage the
Negotiators Dilemma. They must avoid it by grasping its more distributive, adversarial horn.
Similarly, a lawyer operating in a Relationship framework, who works to satisfy a clients
interest in a repaired or better relationship, may thereby downplay the hostile steps that seem
necessary to obtain the maximum tangible benefits under a Distributive framework. If the
practice of Collaborative Law violates a lawyers ethical obligation to her client, perhaps Value
creating, Relationship and Understanding frameworks do so as well.
One state ethics body has determined that Collaborative Law violates that states Rules of
Professional Conduct. The promises made in Collaborative Law are said to unduly serve the
64
interests of the others in the negotiation, to the detriment of the lawyers client. And the conflict
is not waivable, even with sufficient disclosure to the client. But this is a minority position.
65
The Standing Committee on Ethics and Professional Responsibility of the American Bar
Association, and the relevant ethics bodies of several other states, have determined that
Collaborative Law does not create an unwaivable conflict. Provided that there is sufficient
66
Adv. Comm. on Profl Eth. Op. 699 (Dec.12, 2005), Collaborative Law, available at
http://lawlibrary.rutgers.edu/ethicsdecisions/acpe/acp699_1.html; see also Lerner v. Laufer, 819 A.2d 471, 482 (N.J.
Super. Ct. App. Div.), certif. denied, 827 A.2d 290 (N.J. 2003) (rejecting a legal malpractice claim against a lawyer
who, after disclosure to the client, did not pursue discovery while giving advice about a divorce settlement
agreement that had been developed in mediation); North Carolina: North Carolina State Bar Assn 2002 Formal Eth.
Op. 1 (Apr. 19, 2002), Participation in Collaborative Resolution Process Requiring Lawyer to Agree to Limit
Future Court Representation, available at
http://www.ncbar.com/ethics/ethics.asp?page=2&from=4/2002&to=4/2002; and Pennsylvania: Pennsylvania Bar
Assn Comm. on Legal Eth. & Profl Resp. Inf. Op. 2004-24 (May 11, 2004), available at
http://www.collaborativelaw.us/articles/Ethics_Opinion_Penn_CL_2004.pdf. Several states have special rules for
collaborative law practice. See, e.g., CAL. FAM 2013 (West 2007); N.C. GEN. STAT. 50-70 to 50-79 (2006);
TEX. FAM. CODE ANN. 6.603 & 153.0072 (Vernon 2005).
See Part VI infra.
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disclosure to the client, and the client makes a voluntary choice to participate in the process, the
lawyer will not have violated her ethical responsibilities by engaging in a Collaborative Law
process.
The Value creating, Relationship and Understanding frameworks present a less pointed
tension than Collaborative Law, but perhaps one that is more difficult to dismiss. The
Collaborative Law problem arises from the lawyers specific act of committing himself to
withdraw from representation if litigation ensues. It is that commitment that seems to sacrifice
loyalty to the client for the apparent sake of the others in the dispute. The Value creating,
Relationship and Understanding frameworks do not require any such specific commitment or
turning point. Instead, they are all more fluid and malleable. A lawyer is free at any time to take
actions that are more consistent with a Distributive framework than with one of the questionable
ones. As discussed below in the context of how lawyers are to implement the various
frameworks, it may not be easy to tell if specific actions or statements fall within one framework
or another. Thus, it would be difficult to pin down a specific act of a lawyer that would raise
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ethical concerns in the same way as the formal commitment to withdraw.
Obtaining client consent is the most ethically satisfactory way to deal with the ethical
challenges of Collaborative Lawyering and also of using the alternative fraemworks. But just as
the fluid nature of the alternative frameworks makes it more difficult to identify when an
ethically noteworthy action has been taken, that fluidity makes it more difficult to cartuclate
See text at note 16, supra.
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what might constitute adequate client consent. Rather than identifying a precise act or precise
moment when consent is required, and must either given or withheld, as with the Collaborative
Law pledge, the consent entailed in the alternative frameworks can only effectively arise from
ongoing communication between lawyer and client. For instance, a lawyer working in a
Relationship framework could use a series of questions and statements to keep the relationship
idea in the forefront with the client. In the third incident described at the beginning of this
article, for instance, the parties were likely to have some kind of ongoing relationship through
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their religious activities and childrens athletics. If they were to work out substitute payment
terms, or change their business relationship to give the lender more security about repayment,
they would also face a continuing business relationship. A lawyer could use statements and
questions such as: If we work out a refinancing agreement, youre going to have to be
sufficiently confident that they will do what they are saying they will do. What would you need
from them to do this? Would you want to have some kind of regular communication to see
how things are going and to raise problems and slippage? Would you feel comfortable
talking to them about these things? If you have some concern, what could they do to make you
feel more comfortable raising such matters? If your children will be engaged in common
sports activities, how will you deal with him? What effect would that have on your business
relationship? Returning to these kinds of statements and questions as the matter proceeds would
allow the client to consent to the lawyers direction, or to seek a change. A client who only
wants a one-time payment as a way to be done with the matter could reject the lawyers inquiries
and direct the lawyer to obtaining the best distributive outcome. But a client who is attracted to
this view of the future would allow, or even encourage, the lawyer to continue.
If consent is a matter of ongoing dialogue between lawyer and client, we face some
challenging questions about the amount of influence a lawyer can properly exert. I will take
these issues up in the next section, considering whether a lawyer should move into a Value
creating, or a Relationship, or an Understanding framework, even if the client is unaware of such
options, has no idea what they mean, and might even be hoping that the lawyer will act only as
R. 1.1, MODEL RULES, supra note 57.
69
Id. Comment 6.
70
Id. Comment 1.
71
the vindicator of her legal rights.
Legal ethics also require that a lawyer act competently. It might be argued that a
69
lawyer should not try to implement any framework other than a Distributive one because most
lawyers cannot capably work in any of the other frameworks. The lawyer in the fourth scene
that started this article may have objected to the participation of the supervisor as group
therapy because he felt he was not competent to work with the expressions of feeling, or the
search for improved mutual understanding, that the mediator seemed to be seeking. Lawyers
have no particular training in the kind of economic creativity that is needed for the Value
creating framework or in other kinds of creative thinking. Nor are they required to train in the
arts of understanding and guiding relationships, or of understanding peoples narratives about
themselves or explanations about others.
But lack of training does not make lawyers incompetent in the ethical sense. Lawyers
undertake many important tasks for which they do not need, and may not have had, specific
training. Trying cases and negotiating settlements and transactions are just two examples of
skills that lawyers use without systematic training. To be sure, good lawyers should develop
their skills in such matters by paying attention to what they and others do, by reading, and by
some kind of continuing professional education. But lack of such activity does not make their
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work ethically dubious. Similarly, lawyers should exercise ethical judgment by not falsely
representing to their clients what they are capable of doing. They should decline work that they
reasonably think is beyond their economic capacity or substantive or procedural knowledge, or
they should associate themselves with someone who has the critical experience or resources they
think they lack. Those are case-by-case judgments, not blanket exclusions based on a lack of
71
training.
If anything, the mediation frameworks we have been considering are less ethically
problematic, from a competency standpoint, than many other things a lawyer might be tempted
See text at note 12, supra.
72
GETTING TO YES, supra note 14, at 57.
73
to do. Most importantly, the frameworks are part of ordinary thinking. It is part of life, not a
specialized skill, to be concerned with how people are relating to each other, and how they might
relate better. Similarly, gaining more perspective over how others think, act, or feel is an
ongoing challenge for all of us. The kind of creativity that can invent options for mutual gain is
a benefit wherever in life it is found. To bring these kinds of frameworks to bear in a mediation
primarily requires that lawyers do as lawyers what they can do as ordinary, nonprofessional
people. They may not do these things particularly well in their nonprofessional lives. We could
all do much to improve. But that does not make their attempts unethical from a legal point of
view.
V. SHOULD LAWYERS THINK LIKE MEDIATORS?
Whether a lawyer should adopt one of the mental frameworks other than Distributive
may be a more difficult question than whether a lawyer has the mental wherewithal or the ethical
permission to do so. I am assuming that a lawyer has some power to choose in the matter. But
having the power to choose does not mean there is any kind of obligation to do so. Take, for
example, the lawyer for the businessman who thought he had bought the property in the second
scenario at the beginning of this article. That lawyer had the opportunity to permit her client to
72
disclose her plans for the property. Disclosure could reduce her clients bargaining leverage in a
distributive bargaining framework. But for someone operating in a Value creating framework,
disclosure of such an underlying interest would be understood to create an opportunity to
develop new terms of agreement that would be more beneficial to both than the legal claims and
negotiating positions that the parties had so far been able to express. On what basis should she
choose?
One standard would be personal preference. If a lawyer has a taste to invent options for
mutual gain, she would be free to do so. If she prefers the dramatic confrontations and game
73
playing of a Distributive framework, however, she would be equally free to block disclosure and
See WILLIAM H. SIMON, THE PRACTICE OF JUSTICE (1998); Bruce A. Green & Fred C. Zacharias,
74
Permissive Rules of Professional Conduct, 91 MINN. L. REV. 265 (2006).
See WHY?, supra note 47, at 22.
75
carry on the fight for positional advantage.
For me, a lawyers personal preference is not an adequate justification for such a choice.
Rather, lawyers should make the choice based on professional judgment and professional
discretion. This puts me in the camp of those who view legal ethics as something other than an
exercise of drawing lines with rules, something more than merely prohibiting action that falls on
the wrong side of a rule, while giving lawyers complete license to act as they would on the safe
side of the rule. Instead, legal ethics requires the exercise of professional judgment and
bounded, guided discretion. A lawyers discretion about choosing frameworks would be
74
guided by such things as her view of her clients best interests, her experience and facility with
various frameworks, her clients preferences about them, her sense of the degree to which the
conflict lends itself to the different frameworks, and her sense of the amenability of the other
participants to engage in the kind of interchange that is necessary for each of the frameworks.
It might seem strange to speak about exercising discretion and choice in matters of
cognitive frameworks for dispute resolution. I have described frameworks as a kind of tacit
knowledge, a group of perceptions and actions that make coherent sense to the actor without
much articulated self-knowledge or even deliberate choice. Frameworks can seem more like
what someone finds herself doing, rather than what someone intentionally chooses to do.
Furthermore, frameworks can seem robust and persistent. Mediators who inhabit a particular
framework may think of the framework as setting the path they will follow, and they will try to
do so consistently and at length.
But frameworks need not be exclusive or persistent in this way. A participant in a
mediation may flip between frameworks, much as people talking about a troublesome matter
may swiftly shift back and forth between the four different modes of talk described by Tilly. At
75
each moment in a mediation, frameworks help us decide or perhaps make us decide what to
do or say next. Each subsequent statement or action seems more appropriate or less appropriate
Tamara Relis, It's Not about the Money!: a Theory on Misconceptions of Plaintiffs' Litigation
76
Aims, 68 U. PITT. L. REV. 701 (2007).
depending on the framework through which we are understanding it. A shift in framework
even an unconscious one may lead us in a different direction, as new topics now seem relevant
and fruitful. In Part VI, infra, I discuss how different subject matters of mediation talk are
pertinent to different frameworks, and how the subject matters both indicate which framework
we might be in, and how we might move the mediation discussion along the lines of a different
framework.
Similarly, the frameworks can operate in both the conscious and unconscious realms of
our thinking. The things we say and the actions we take might often seem right to us because
they are consistent with a tacit framework we are using, without our exercising any conscious
thought about our choices. But we can also be aware of choices we have about speaking and
acting. We can consciously choose our next words or actions because we think they are
appropriate in light of a framework we understand and wish to pursue. Experts who reflect on
their actions and try to improve their professional behavior in light of their understanding are
often consciously using their understanding of good professional work to guide their actions.
Such control may moderate the degree to which someone flips between frameworks, but it also
provides a mechanism for conscious choice.
Given that a lawyer has some ability to exercise discretion about the cognitive
frameworks of mediation, we need to consider why that discretion should be used in the
direction of the alternative frameworks, rather than remaining in a Distributive framework that is
most familiar to the legal world.
The strong argument for moving beyond the Distributive framework arises from loyalty
to clients and clients interests. To the extent a clients interests and goals range beyond what
the Distributive framework for mediation can provide, a lawyer serves those interests and goals
by adopting methods more suited to meeting the clients needs. It should come as no surprise
that, from a clients perspective, conflicts involve more than legal rights and legal obligations.
In surveying clients and lawyers in medical malpractice disputes, for instance, Tamara Relis
found that clients were interested in much besides financial compensation. Among other
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Lehman, supra note 61 at 1088 - 90. One situation involved a couple who wished to give a gift to
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a valued friend, but who deferred the gift on their lawyers advice because a later gift would have produced a lower
tax liability. The couple were killed in an accident before they could make the gift, so it became impossible.
Another involved whether a recovering alcoholic should defer the sale of her house for a time to escape capital gains
tax, even when the burden of the house seemed to be interfering with her recovery from alcoholism. In both,
Lehman argues, the problem arose from lawyers thinking in instrumental ways how can they engineer the best
financial outcome for the client without entering into a dialogue with the client about what is important for the
client, and how include those values showing appreciation and returning good deeds with a gift, moving beyond a
destructive situation in making a law-related decision. As with Relationship and Understanding frameworks, the
means to good judgment and good decisions lies in attentiveness to, and dialogue about, the clients concerns,
considered broadly and holistically.
AUSTIN SARAT & WILLIAM L.F. FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND
78
MEANING IN THE LEGAL PROCESS (1995).
Id. at 53 (Defining and identifying realistic goals, and orienting and reconciling clients to the
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world of the legally possible, occur during complex negotiations of meaning in which struggle, if not overt conflict,
is frequent.)
things, they wanted an understanding of why things went wrong, and they wanted some kind of
assurance that medical providers would not repeat the mistakes that led to bad outcomes. From
their perspective, the disputes were not just about the money. Value creating, Relationship and
Understanding frameworks all provide mechanisms better able to satisfy those goals than
distributive bargaining can.
The latter three frameworks also provide mechanisms for dealing with the kinds of
dilemmas poignantly noted by Warren Lehman, in which a lawyers legal advice leads a client
away from extra-legal satisfactions the client desires. While mediation frameworks are limited
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to conflict situations and are thus not available for many situations involving tensions between
legal structures and client wishes, they provide a fuller opportunity for lawyers to align their
work to the satisfaction of a clients interest than the Distributive framework can.
Similarly, in some instances the alternative frameworks can reduce the need for lawyers
to redirect the clients away from what the clients want. Consider the account of lawyer-client
interactions given by Austin Sarat and William L.F. Felstiner. Drawing on recorded
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conversations between lawyers and their clients in divorce cases, they show how clients express
goals, such as correction of the wrongs their spouse has inflicted on them and returning pain for
pain, that the lawyer knows are generally not achievable in legal proceedings. Part of the
lawyers job becomes directing the client away from those goals. The alternative mediation
79
DAVID A. BINDER, ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (2d Ed.
80
2004).
E.g., Id. at 273-74. (In a negotiation, the landlord client not the lawyer should decide whether
81
to push for a maintenance cost-sharing provision in a shopping center lease at the risk of a breakdown in
negotiations, or drop the demand and risk creating a perception that the landlord is too eager to concede.)
But see id. at 283 (suggesting that a lawyer consult with a client about the kind of business
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relations the client wants to have in the future with an opposing party.)
frameworks may provide a broader range of techniques than the adversarial litigation and
distributive compromise most obviously available to Felstiners and Sarats lawyers. Some
interpersonal wrongs that the law will not correct may be addressed in a Relationship or
Understanding framework. A lawyer looking forward to a mediation using a Relationship or
Understanding framework might speak differently with a client than Felstiners and Sarats
lawyers, emphasizing some possibilities of process or outcome that Felstiners and Sarats
lawyers could not.
The foregoing arguments in favor of using the alternative frameworks are a form of
client-centeredness. That approach to lawyers work emphasizes that lawyers should not
presume to know what their clients want, and suggests a variety of techniques for listening to
clients to aid lawyers in developing a fuller understanding of their clients goals. In describing
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client goals, the client-centered model tends to focus on tangible things, even if such things are
not limited to the assertion of legal claims. It may be more congenial to the Value creating
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framework, which looks to increase a clients tangible benefits by finding new structures for
agreements, than to the Relationship or Understanding frameworks. But the fundamental
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precept of client-centeredness attending to a clients true goals provides a key reason to
operate in a Relationship or Understanding framework as well. The client goals embodied in
Relationship and Understanding frameworks can be just as important for clients as the more
tangible ones emphasized by the client-centeredness approach. Client-centeredness should lead
lawyers into the alternative frameworks just as fully as it should lead them into interviewing and
counseling techniques that bring a clients goals more fully to the surface.
The should question becomes more difficult when the alternative frameworks are not
simply mechanisms to try to satisfy the clients expressed goals. If a client comes to a lawyer
THOMPSON, supra note 11.
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MODEL RULES, supra note 57, RULE 1.2(A) (lawyer to abide by clients decision regarding
84
objectives of the representation, but consult about the means; lawyer implicitly authorized to take actions to carry
out the representation.)
THOMAS MAUET, TRIAL TECHNIQUES (7 Ed., 2007); ALBERT F. MOORE, ET AL., INFERENCES,
85 th
ARGUMENTS AND TRIAL TECHNIQUES (1996) (emphasizing that litigators must develop a theory of the case, a
narrative story of the facts that persuasively satisfies or negates the elements needed to establish legal liability,
and must conduct cross examination in such a way that it supports the theory of the case.)
seeking only the biggest possible monetary recovery (or, for a defendant, the smallest possible
payment), should the lawyer take the client at her word? Should the lawyer ignore any
alternative methods that would deal with other concerns that the client may or may not have, but
which the client has not expressed?
The Value-creating framework can easily be justified as a means to achieve the clients
expressed goals. Its aim is to find terms of agreement that gives the client more tangible benefit
than a distributive negotiation might, or at least to minimize the risk of stalemate that distributive
negotiation carries. The client may not perceive this benefit of the Value-creating framework. It
is difficult for even experienced negotiators to find mutually beneficial value in negotiation
situaitons. But even if the client does not appreciate the value of the framework as a means to
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her ends, the lawyer has ethical discretion to select means that seem best designed to satisfy the
clients ends. The Rules of Professional Conduct, for instance, distinguish between goals, which
lie within the clients control, and means, which are left to the lawyer. While the Rules ask a
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lawyer to consult with a client about means, they do not require the lawyer to use the means that
the client prefers. The choice between a Distributive framework and a Value-creating one is
similar to the choice of how to conduct a cross examination. A client might badly want her
lawyer to use cross examination to show the world how shameful and deserving of scorn the
witness is. But, keeping her eye on what would best persuade the jury, the lawyer may want to
use the cross examination only to bolster her theory of the case. That may require using cross
examination only to highlight certain facts, or only to show improbabilities or inconsistencies in
the other sides case, all of which might be undermined by too aggressive an attack, particularly
one not focused on the facts that are critical to the clients story. It seems to me that a lawyer is
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Steven Hartwell describes legal disputes as sometimes arising from a failure of other informal
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methods of social interaction to correct disruptions of interpersonal and social order. Steven Hartwell, Humor,
Anger, Rules, and Rituals, 13 CLIN. L. REV. 327 (2006) (describing how people try to deal with disruptions first by
humor, then by anger, if humor is inappropriate or does not work, then by invocation of rules, and finally by the use
of rituals such as litigation.)
as obligated to use a Value-creating framework for the benefit of the client as he is to use cross
examination to build the case, rather than simply to tar the witness.
The Relationship and Understanding frameworks are less amenable to the goals-means
division of responsibility. Relationship and Understanding aim to give the client something he
does not have in the midst of his conflict, either a better relationship or more awareness and
control of his situation. But these might not be what he is seeking. Even if he does not articulate
them as a goal, should his lawyer strive to achieve them? Many clients would probably not even
think of such things as meaningful goals in the context of seeking legal help. Should their
lawyers adopt means the alternative mediation frameworks that would increase the likelihood
of achieving such goals?
The strong argument for lawyers taking those paths, even in the face of their clients
unawareness, is as follows: Legal disputes often grow out of conflict with larger dimensions.
The parties may be trying to reshape or end a family or business relationship. The
circumstances that seemed favorable when people entered into a contract or an employment
relationship have changed, or they find that they have different understandings of what they
should expect from each other. The hurt, both physical and emotional, that accompanies an
accident may be intensified by the need to ascribe or avoid blame, and find some kind of
meaning in the bad events. The parties may end up with lawyers because they cannot
satisfactorily deal with the issues on their own. But framing the dispute in terms of legal
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claims and defenses does not erase the other aspects of the conflict. They remain real for the
parties, even if they cannot be addressed in any legally relevant way. The alternative
frameworks provide an opportunity for the parties to deal with them again. These are the
working assumptions of mediators who operate in these frameworks. They would also be the
assumptions for lawyers who participate in the alternative frameworks.
The lawyers stance towards their clients thus becomes somewhat paternalistic. The
For a discussion about how the common and familiar desire for revenge can slide into forgiveness
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over time, see MICHAEL MCCULLOUGH, BEYOND REVENGE: THE EVOLUTION OF THE FORGIVENESS INSTINCT (2008).
If such transformations are part of how people deal with conflict and hurt, and because hurt and a desire for revenge
often play a role in the conflicts that end up in litigation, then the Relationship and Understanding frameworks can
provide a place for the forgiveness instinct to be expressed.
The mediators power to take disputants in directions they did not expect or intend to go is
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highlighted in the development of Leonard Riskins analysis of how mediators interact with the parties. In his earlier
formulation, he termed the strongest kind of mediator intervention evaluative, connoting an explicit judgment by
the mediator about the merits of the parties claims or the value of the parties courses of action. Mediator
Orientations, supra note22. His more recent formulation, however, steps away from the term evaluative and
instead uses directive to describe a strong way in which mediators can lead the parties, rather than just responding
to what the parties are already thinking or doing. Directiveness is not limited to judgments about the substantive
issues in dispute. The mediator can also be quite directive about the procedures of the mediation. Decisionmaking
in Mediation, supra note 12. Directiveness shades into a form of paternalism. The mediator seeks to influence the
parties to take actions, discuss matters, and make decisions in ways the parties may not have expected and might
have no interest in doing on their own, if it were not for the mediators influence.
lawyers see opportunities to address more than the legal issues in the dispute, even if the clients
do not see them. The justification for such action lies in lawyers expertise in conflict and
dispute resolution. They understand that conflicts live and change over time. New limitations
and new possibilities present themselves as the parties interact and their knowledge,
understanding, and feelings change. Just as they can maneuver in a litigation or in a
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transactional negotiation to open up some doors for their clients (and close some doors for the
other side), they can expect that the dynamics of mediation could reveal or create good
opportunities that were not previously available.
Mediators work can raise similar paternalistic concerns. A mediator working in a
Distributive framework would try to influence the parties to get them through the process of
taking positions and making concessions more effectively. The positional, distributive way of
operating is familiar to many people in dispute situations, so they will likely recognize what the
mediator is doing. Indeed, some welcome it, as a way to elicit more concessions from the other
side than they have been able to do. A mediator focused on creating value, or dealing with
relationships, or increasing understanding, however, may be structuring the mediation with a
framework that the parties do not recognize and do not expect. The mediator does so because
she thinks it is good for the parties to take advantage of what the alternative framework has to
offer. Moreover, each of the alternative frameworks take the parties on a journey. If
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AMERICAN BAR ASSN, ET AL., MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard 1A
89
(2005) (A mediator shall conduct a mediation based on the principle of party self-determination.)
successful, the parties will end up at some place they may not have expected to be. In a Value-
creating framework, they will have understood their interests and the interests of the other side
more fully, and will have created terms of agreement that were not previously in their
contemplation. In a Relationship framework, they may find themselves changing their
communication patterns with each other in unexpected ways, or may find they have different and
unexpected views of what each should expect from the other, or may have gone through the
experience of giving or accepting an apology. In an Understanding framework, they may come
to see the other, and also see themselves, in an unexpected light. The mediator cannot tell them
where they will be at the end of the process the mediator does not know. But the mediator
trusts that the framework can help them find a place that they find more satisfying than their
current conflict or than the compromises that the Distributive framework entails.
Mediators may try to ameliorate the paternalistic aspects of these processes by
periodically asking the parties about their satisfaction with the process as they proceed. But
mediators have broad discretion to decide how much influence they will exert, and how to speak
with the parties on an ongoing basis to make sure that the mediators influence is not unduly
undermining the parties power of self determination. Party self-determination is a fundamental
ethical precept of mediation. But that still leaves mediators with a broad range of discretion in
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how emphatically they seek to influence the parties actions and decisions. As with the law of
contracts, party self-determination means that parties are not legally bound by promises they
make under duress, or that result from misrepresentation, or that are unconscionable in their
substance or in the procedures that created them. Mediators are ethically obligated not to
manipulate parties into agreements that have those faults. But beyond that baseline, we rely on a
mediators good judgment to balance the need for self-determination with the need to influence
the parties to see things and decide things they have been unable to do by themselves.
Lawyers can use the same kind of continuing interaction with their clients to preserve
their clients autonomy and freedom of choice, while at the same time influencing the mediation
As discussed in Part VI, infra, lawyers influence the framework used in a mediation by the kinds
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of things that are discussed. A lawyer operating in an Understanding framework might try to keep the discussion
focused on the different ways in which each side was seeing the other and seeing themselves. She would not be
expected to announce that she wanted the mediation to be of the Understanding kind. The frameworks are unstated
mental structures that organize the perceptions and the talk. A client might resist discussion about how the other
side is seeing the matter, or about different ways in which the client could see his own narrative. The lawyer, using
an appropriate degree of paternalism, could resist back, and try to keep the discussion going on subjects that would
flesh out the framework. Lawyers cannot unilaterally implement a framework. They need the participation of the
others in the conversation. If a client, and the others, all refuse to engage in the conversation required for the
framework, the lawyer may have to give up. The sharpest lawyer-client tension would come if all the parties in the
room except the client were working more or less in the same framework. Then the lawyer would have to choose
between trying to redirect the conversation along the lines that the client preferred, or to continue along the lines that
the lawyer and the others preferred.
See Donald G. Gifford, The Synthesis of Legal Counseling and Negotiation Models: Preserving
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Client-Centered Advocacy in the Negotiation Context, 34 UCLA L. REV. 811 (1987); see also, LAWYERS AS
COUNSELORS, supra note 79.
Even if a negotiator states an ambitious position with the expectation that he will have to make
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some concessions, the position is still a specific goal that the negotiator would be all to happy to achieve.
process to take their clients in directions the clients may not have expected to go. This is
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another example of how counseling with a client, and actions on behalf of a client, are
interlaced. But such counseling does not eliminate the possible paternalism in these
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frameworks. Unlike distributive negotiation, in which the expressed negotiation positions are
precisely the goals which the negotiator would like to achieve, one does not really know what
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the end results will be of a mediation conducted in a Value-creating, Relationship or
Understanding framework until one has arrived there. The end results are to be created through
focus on interests, or found through a fuller articulation of a relationship, or a greater
understanding of self and other. The dimly foreseen end may or may not coalesce out of the
process itself. We can expect that along the way the lawyer could remain more optimistic about
the chances of finding a good outcome than the client might be. A lawyer who accedes too
quickly to his clients doubts about the process could be depriving the client of a benefit that the
client simply does not foresee. Thus, a dose of procedural paternalism could well be
appropriate.
Unlike neutral mediators, however, lawyers are partisans for their clients. Does this
mean that lawyers should be less free than mediators to move the mediation towards methods
Rule 1.4 of the Model Rules of Professional Conduct for lawyers requires a lawyer to consult with
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her client about the means by which the clients objectives are to be accomplished, and about any limitations on the
lawyers conduct. MODE RULES OF PROFL CONDUCT R. 1.4(a)(2) and (a)(5) (2007). Rule 1.2(a) authorizes lawyers
to take actions that are impliedly authorized to carry out the representation and to abide by a clients decision to
settle a matter. Id. R. 1.2(a).
For instance, a decision whether to submit a dispute to arbitration, as provided by a contract, or to
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sue in court, challenging the arbitration requirement, is in one respect a choice of means: which forum is most likely
to produce the most favorable outcome for the client. But the choice can also be about ends. Court litigation can
generate publicity and establish a precedent. Arbitration can preserve privacy. The means have indirect effects for
the client that would seem to require some client participation in choosing them.
For instance, plaintiffs claiming to have suffered psychological damage must waive patient-
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therapist privilege and permit their therapists to disclose private information about them.
that a client may resist? The question places us squarely in the mixed area between goals and
means. Clients have the most authority over choosing goals, and at the extreme have complete
power to decide on goals. Lawyers have the most authority over the technical means, and at
their extreme have complete power over the means to be used. In the middle, lawyers have
authority over means, but they should consult with clients. Many decisions that lawyers make
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implicate both ends and means. Does the choice of mediation framework intrude so much on a
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clients autonomy that the client should retain a substantial ability to control the framework that
is used? I dont see how it does. The alternative frameworks may require discussion of matters
that the client thinks are private, such as his underlying interests, or feelings, or how he perceives
his opponent. But litigation also requires a client to give up his privacy in matters that are
legally relevant to the dispute. The matters that come up in mediation under the alternative
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frameworks are relevant to those frameworks. In addition, unlike his situation in litigation, a
party in a mediation retains the power to refuse disclosure. However relevant the question, he
can simply not disclose information that seems too private. His lawyer, and the mediator, might
urge him to do so, but they have no power beyond whatever trust or other interpersonal
persuasive force they have earned from the client.
Apart from privacy concerns, some disclosures in the alternative frameworks may
weaken a partys tactical advantages in distributive negotiation, such as permitting the other side
to better infer what the partys bottom line in negotiation really is. Some disclosures may also
This risk seems small in light of the broad scope of pretrial discovery. The other side could find
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out much if not all of the information anyway through interrogatories, depositions, and the production of documents.
But the cost and complexity of discovery may allow a party to effectively hide certain facts that might be revealed in
the more candid setting of a mediation using one of the alternative frameworks.
The social reasons for promoting mediation in the presence of our legal system include obtaining
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resolutions of disputes more quickly and less expensively than litigation, obtaining resolutions that are more durable
and more fully meet the parties needs and concerns than the formal legal process, providing a process that can give
the parties more voice than the highly structured and limited procedures of legal disputing, all without necessarily
sacrificing fairness or a sense of justice. All of these justifications are controversial, to a greater or lesser degree, but
whatever strength they have equally justifies an effort by lawyers to capture the advantages of mediation.
require adjustments in a partys litigation strategy, if the dispute is to go to trial. Managing the
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disclosure-concealment tension is an aspect of a lawyers skill, not a reason to avoid the
disclosures altogether. Different lawyers will manage the tension differently, all within the
range of sound professional judgment. Lawyers operating in a Distributive framework will most
likely disclose less, while lawyers operating in an Understanding framework will encourage
more disclosure of things that are relevant to increasing mutual understanding.
Clients are also protected in mediation by the fact that nobody imposes a resolution on
them. They must voluntarily accept any terms that resolve a dispute or change a relationship,
and are free to agree to nothing. Retaining this power reduces, although it does not eliminate,
the danger that paternalistic lawyers, shaping the mediation in accordance with a framework that
the client may not perceive or consciously agree to, will intrude unduly into the clients
autonomy.
Finally, lawyers can justify their embrace of the alternative frameworks with a different
kind of should. My previous arguments have relied on a lawyers obligation to benefit her
client. The alternative frameworks can serve a clients interests more fully than the Distributive
framework, encompassing client concerns and wants that cannot be squeezed into the framework
of legal rights. But a lawyers use of the alternative frameworks also serves a more general
societal interest improving the system of justice. The same social reasons that support the use of
mediation in all its forms in law-related conflicts would support its use by lawyers in the
ways they represent their clients.
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VI. HOW CAN LAWYERS THINK LIKE MEDIATORS?
The tacit nature of the cognitive frameworks presents a challenge for lawyer seeking to
take advantage of them. Because they are tacit, people implement them automatically, without
conscious choice or control. People need not even be aware of what they are doing. All they
need to know is that some things make sense those that are consistent with the cognitive
framework and some things do not. So lawyers, like everyone else, may have trouble
identifying what framework is operating.
Moreover, their tacit character makes it difficult for a lawyer, or a mediator, or anyone
else to implement a particular framework. Once a framework is in operation, certain things seem
appropriate, and others do not. But getting into a framework is more like diving into a pool than
like walking, conscious step by conscious step, across a bridge. We can add to this the fact that
mediations are interactive processes; what happens cannot depend on the will or action of a
single participant, but must be shared to a degree. A particular framework will only work if a
sufficient number of the mediation participants have become engaged in it.
We may find the markers of different frameworks in many things that occur in a
mediation, including what the participants say and how they say it (verbally and nonverbally),
how they react to each other, what they feel and how they express what they feel, what their
goals are, what they fear and what they hope for, and so on. To have some way to perceive and
manage the frameworks, I suggest that we should focus on the first: what the participants say.
The subject matter of their talk can provide a vivid indication of the framework in which they
operate. In the four scenarios with which I began this article, the disagreement between the
lawyers and the mediators was, at its most straightforward level, about what to talk about.
Particularly in the last three scenarios, the mediator wanted to talk about things that were
appropriate for the mediators framework underlying economic needs and interests,
relationship, and reciprocal understanding, respectively but were inappropriate for the
distributive, positional framework of the lawyers. Just as the lawyers and the mediators
experienced in the scenarios, some subject matters are particularly appropriate for some
frameworks but not for others.
If subject matters form a kind of marker for the frameworks, as I think they do, then the
task of identifying an operating framework can be somewhat simplified. If one pays attention to
and names the subject matter of the mediation conversation, he or she can have a clue as to the
framework in the room. Moreover, the subject matter areas provide a way for a participant,
including a lawyer, to influence a move into a framework, or to keep a mediation from jumping
into a different framework. If a participant introduces a new subject matter that is a marker for a
particular framework, if the others pick up that subject area and continue the discussion in it, the
framework may shift to the new one. If others start to introduce a different subject matter, but
the participant resists and keeps the discussion going in the preferred subject matter, then the
framework may remain the one that the participant seeks. With the pertinent subject matter, the
continued conversation will seem appropriate, because the subject matter is congruent with the
framework. The frameworks are in part made up of the subjects that are discussed. The subject
matters both signal the presence of a framework, and at the same time are part of the creation
and maintenance of the framework.
I dont think we yet have a systematic, verifiable understanding of how particular subject
matters are linked to cognitive frameworks. The seven subject matter areas that I describe below
might be best understood as a working hypothesis of the link between key subject matters and
cognitive frameworks. I expect they will seem familiar to some mediators, but quite strange to
many lawyers. But attention to pertinent subject matters can help lawyers identify the
framework that the other participants may be using, and provide a way for the lawyer to try to
direct the conversation to a place where the sought-after framework will blossom.
I list seven different categories of mediation talk that are significant to build or
inhabit a framework. None of these subject areas belongs exclusively to any one of the
frameworks. As will be seen, various subject areas can work within several different
frameworks. Whether a particular subject area is best understood as part of a specific framework
may depend on its context in the discussion, and on the metalanguage such as facial
expression, body movement, and emotion that accompanies it. A particular subject area may
be necessary but not sufficient to inhabit a framework.
The seven distinctive subject matters are:
1. What happened and what it meant.
2. What can or will happen in the future.
In a Distributive negotiation, a party might be persuaded that the other sides account of what
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happened, or about the governing law, is stronger than previously understood. That change would lead to a change
in ones private assessment of when the settle, and a willingness to make more concessions in ones settlement
position, but only if necessary. The party negotiating effectively in a Distributive manner would try to conceal any
change in his judgment about the facts and law, however, so as to keep hidden from his opponent the possibility of a
greater concession.
3. Law and legal rights.
4. Fairness and moral rights.
5. Relationship.
6. Feeling.
7. What someone wants, what they can get, and how they can get it.
1. What happened and what it meant. This kind of subject is strongly
constitutive of a Distributive framework. In the mediation of legal disputes in
that framework, the parties are concerned about historical events. The meaning
of the events refers to their legal relevance. In the context of a litigated or
potentially litigated matter the alternative to agreement is the anticipated result of
adjudication. That is key information for taking positions and making
concessions, which lie at the heart of the Distributive framework. The
participants will use the discussion of what factually happened, and the legal
meaning of those events, to clarify their own predictions of the adjudication, and
to influence the other participants predictions. They will emphasize the facts and
legal meaning that make their case seem stronger, and will wish to conceal the
facts and legal meaning that make their case seem weaker. What happened, and
what it means, are used in an instrumental way to try to shift the point at which
the other party will agree to a preferred settelement.
What happened and what it meant can also constitute Understanding talk,
but in a quite different way than in a Distributive framework. For Understanding,
it is not necessarily important to reach agreement or change the others mind,
either explicitly or tacitly, about what actually happened. Rather, each sides
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Telling about the past is often part of an Understanding framework. See Carrie Menkel-Meadow,
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Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice in Mediation, 5 CARDOZO J.
CONFLICT RESOL. 97, 110 (2004). (Without a full airing of our past sufferings, we cannot move on.)
See text at note 104, infra.
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perception of what happened is critical to the extent that each comes to
understand how things seemed to her counterpart, as well as how things seemed
to her. Perception, not truth, is sufficient. In the Understanding framework,
that kind of mutual perception is the material with which the parties can start to
build a way to deal with their conflict or resolve their dispute. The meaning of
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what happened is not limited to legal relevance. The important meaning is the
meaning that each party gives to the past events, for whatever reason, and
regardless of its objective validity. What happened and its meaning are not
simply instrumental as ways to influence settlement positions, as they are in a
Distributive framework. They are intrinsically valuable.
Talk about what happened and its meaning might also be indicative of a
Relationship framework, but only if the parties talk about what happened in terms
of their relationship. For the sake of clarity, talk about relationship should be
understood as an independent category, rather than cramming it into the what
happened subject matter. If the participants are trying to persuade each other
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of the truth of what happened in the past, and its legal significance, we can guess
that they are in a Distributive framework. If they are talking about how they
perceived what happened more generally, and if they are talking about how they
understand each others perceptions, we can feel more confident that they are in
an Understanding framework. If their talk is about aspects of their past
communication and relationship, however, without an overlay of legal
significance, or an effort to prove right and wrong, and without an effort to
understand each others perceptions, it would be more appropriate to think of
their subject matter and perhaps their framework as relationship.
In his advice to negotiators operating in a Value-creating framework, William Ury, one of the most
101
effective advocates of a Value-creating framework, tells his readers to ask What if? WILLIAM URY, GETTING PAST
NO 83 (1993) The question helps the parties focus on creative ways to invent mutually beneficial agreements.
What if is talk about what can or will happen in the future.
What happened and its meaning are even less pertinent to a Value creating
framework. That tries to focus on revealing present interests of all parties, and
constructing terms of agreement that will deliver the greatest satisfaction of the
interests of each in the future. The past is of relatively little importance.
2. What can or will happen in the future. As just noted, when the subject matter
of mediation talk focuses on what can or will happen in the future, rather than
what happened in the past, the participants may well be operating in a Value
creating framework. This is particularly true if talk about the future occurs in the
context of the parties interests.
Talk about the future can also be indicative of a Distributive framework, if
the talk is about what will happen to the parties in the absence of an agreement.
In a litigated matter, for instance, each side can try to bolster its own commitment
to a settlement position, or try to induce the other party to make concessions, by
painting a picture of what the court will decide. An important distinguishing
characteristic may be whether talk is about what the future would be like with an
agreement, or what the future would be like without one. A future with an
agreement is more the province of a Value creating framework, exploring the
extra value that might be captured by an agreement. The future without an
101
agreement is more pertinent to a Distributive framework, to persuade the other
side of the bad things that will happen to them if they do not agree. In a Value
creating framework, talk will tend to be about the future that an agreement will
bring.
Talk about what will happen in the future is less characteristic of
Relationship and Understanding frameworks. If anything, attention to the future
In the Understanding framework, it is essential for the parties to develop their own idea of the
102
future. In all the other frameworks, the mediator or lawyer could do it for them.
would tend to come at the end of mediations in those frameworks. Once the
parties have obtained enough understanding of each other, or have identified the
latent conflicts that are distorting their relationship, they might be able to develop
plans for the future.
102
3. Law and legal rights. Talk about law and legal rights is most pertinent to the
Distributive framework, for the same reasons as talk about past events. It is a
way a setting the parameters for a distributive negotiation. A mediation
characterized by such talk is most likely operating in a Distributive framework.
Similarly, a lawyer who insists on this kind of talk is probably operating in such a
framework, and is trying to get the others to operate in it, as well.
4. Fairness and moral rights. In conflict situations, claims of unfairness also fill
ones thoughts, and often fill the air. While there may be a substantial overlap
between talk about fairness and talk about law, fairness should be considered
separately, since ordinary, common-sense notions of fairness need not be limited
to what the law requires, and fairness claims may fully express what the parties
themselves want, even if their lawyers dont initially see beyond legal claims and
dollar remedies. Fairness claims may also have the moral suasion to encourage
or to block settlement.
All of the frameworks can include talk of fairness and moral rights. Fairness can
be used as a sword or a shield in the battle of positions in the Distributive framework.
Relationship issues are often entwined with perceptions about fair treatment: Lack of
communication, dismissive and high-handed treatment of another, lack of respect, and
similar relationship issues are often perceived as forms of unfair treatment. Apologies,
also part of a Relationship framework, are primarily about fairness and moral rights.
Someone is only owed an apology because the other violated his moral rights or treated
In a Value-creating framework, it is important, perhaps even necessary, that the participants see
103
both the outcome and the process as fair. But it need not be the focus of struggle, or the subject of extended
discussion, as it could be in the other frameworks.
See supra text accompanying note 102.
104
him unfairly. Talk of fairness and moral rights is also critical for the Understanding
framework. Increasing understanding of self and other, enhancing empowerment of self
and recognition of the other, or changing the narrative that explains the conflict and the
people, often entail a shift in ones perception of what is fair and what moral rights
require in a situation.
Talk of fairness and moral rights probably appears least in a Value-creating
framework. That framework sees the problem as primarily distribution of tangible goods,
rather than restoration or reparation for some perceived wrong.
103
5. Relationship. Talk about the parties relationship is, as the name implies, a
distinctive characteristic of a Relationship framework. As noted above, the
104
Relationship framework includes a broad variety of relationship issues. Some
look to the past, dealing with the ways the parties relationship caused or
intensified the conflict. Some are oriented to the present, with regard to how the
parties are treating each other now, including their behavior and communication
during the mediation. Some focus on the future, as when the participants discuss
how the parties will communicate in the future regarding any differences or
problems that may arise between them.
Talk about relationships can also occur instrumentally in other
frameworks. For instance, if the participants in a Value creating framework are
developing a deal that will involve them in a continuing relationship, they may
pay attention to how they will relate to each other in the future, in order to carry
out their mutually beneficial agreement more effectively. In a Relationship
framework, talk about the parties past, present, or future relationship has a more
intrinsic value. It is an end it itself, rather than a step to another, more monetary
105 What an injured party felt in the past, or is currently feeling, might be relevant in a case in which
emotional distress is an allowable element of damages. The feelings of a witness might also be relevant for
assessing the witnesss credibility. In mediation, the expression of feelings isnt limited to relevance to the legal
decision at hand.
See Clark Freshman, et al., The Lawyer-Negotiator as Mood Scientist: What We Know and Dont
106
Know about How Mood Relates to Successful Negotiation, 2002 J. DISP. RESOL. 1.
end. In mediation discussion, one should be able to notice whether the parties
seem engaged in, and satisfied with, talk about relationship, or whether they
explain and justify their talk about relationship by reference to other goals, such
as their possible deal.
6. Feeling. Mediation provides a place for the expression of emotions
that trials do not. We should expect talk about the parties feelings to play a
105
larger role in mediations conducted in the Relationship and Understanding
frameworks than in the Distributive or Value-creating ones. Expressing ones
own feelings, and perceiving and acknowledging the feelings of the others in the
conflict, is an important part of most of the Understanding approaches to
mediation. Similarly, bad feelings often accompany hostile or difficult
relationships; talking about the feelings becomes part of the effort to restructure
the relationship.
When talk is about feelings, we can notice the familiar distinction between
intrinsic and instrumental purposes. In Relationship and Understanding
frameworks, descriptions and discussions of feelings can be intrinsically part of
the subject matter. In Distributive and Value creating frameworks, however, talk
about feelings can be used instrumentally for ends that are pertinent to those
frameworks. For instance, anger, fear, and defensiveness can limit someones
ability to think clearly about the risks of not making an agreement, or someones
willingness to make a concession in a settlement position. Similarly, strong
106
feelings can interfere with someones willingness to disclose their underlying
interests, which are the key building blocks for a Value creating framework.
Thus, talk about feelings, by itself, will not definitively indicate whether the
speaker is operating in an Understanding or Relationship framework. Much will
depend on what came before and what comes after. If there has been much
discussion about settlement positions, for instance, and the exchange of
concessions has ground to a halt, a discussion of feelings might indicate an
instrumental use to induce further positional movement. If the discussion returns
to positions once the expression of feelings has cleared the air, then feelings
have been kept in an instrumental function. But talk about feelings might indicate
a turn in direction, into a different framework. For instance, if talk about feelings
leads to a more extended discussion about relationship issues associated with the
feelings, then perhaps the participants will have entered a Relationship
framework. Or if talk about feelings leads the parties to spend time voicing a
greater understanding of the perceptions and motivations of each other, then the
discussion of feelings may mark a shift from a Distributive framework to an
Understanding one.
7. What someone wants, what they can get, and how they can get it. People
operating in any of the frameworks should find themselves talking about what the
parties want, what they can get, and how they can get it. What is wanted, what
may be obtained, and what one should do to obtain the desired result, however,
vary in the different frameworks. In the Distributive framework they want the
other side to accede to their positions, they need to consider what concessions the
other side might make, and they can discuss negotiation tactics designed to elicit
greater concessions from the other side. In a Value-creating framework, they will
be aware of their underlying tangible needs and interests and will seek ways to
meet those interests through an agreement with the other parties. Parties working
in a Relationship framework want a relationship that works better, or want some
kind of reparation for a failure of the relationship in the past, and will need to
discuss what should be changed in what the parties expect from each other and
how they communicate. Like the Value-creating framework, an Understanding
framework requires people to understand and express more clearly what they
want, and to understand more fully the perspectives of the other parties. Unlike
the Value-creating framework, however, in an Understanding framework wants
can easily flow beyond tangible wants or the specifics of tangible outcomes.
For me, observing categories of talk in the moment is simpler than the typical way we
approach mediation practice. We usually think of learning about and conducting mediation
practice as a form of deductive logic: Theory comes first. We identify and embrace our general
goals for mediation, we articulate our concepts about the nature of conflict and its management,
we consider our preferred values, and then intentionally apply particular skill sets that we think
will allow us to reach our goals. Focusing on the subjects of what is said in mediation, without
such elaborate mental work, is altogether less formal and less systematic. The foregoing
categories of subject matters provide distinctive clues to the various tacit frameworks with which
mediators and lawyers conduct themselves in mediation. But they do not rigorously chart a path
to ones goal. They are more a kind of doorway to the tacit knowledge that is embodied in the
frameworks. They invite entry into a more automatic way of thinking and speaking, in which the
things perceived and the things said seem appropriate and worth pursuing because they fit within
a framework.
Recognizing and distinguishing the seven subjects of talk as they occur in mediation does
not require years of training. The frameworks are embedded in the thinking of all of us, novice
and expert alike. The subjects are instances, or embodiments, of embedded frameworks, and can
appear as a natural, unforced phenomenon to anyone willing to observe them. Learning about
them does not have to precede the perception of them or the act of using them. Simple
observation can be an effective first step.
I do not intend to demean expertise. Of course, mediation and negotiation are immensely
more rich and complex than simply choosing between subjects to talk about. Carrying out a
mediation within any framework, or within none at all, is endlessly challenging. The dynamics
ebb and flow, information surfaces or submerges, the participants sometimes work at cross
purposes and sometimes work together, all at the edge of, or slightly beyond, the control of any
one participant. By itself, invoking frameworks, and leading others to act within them simply by
trying to lead the discussion into the appropriate subject matter category is rather superficial.
However easy it is for a novice to observe and identify the subject matters and invoke a particular
framework, an expert practitioner will perceive and understand and perhaps influence the
dynamics of the mediation with a power and degree of detail well beyond a less expert
participant. Noticing the framework-relevant subject matters of mediation talk, as I am urging
lawyers to do, is no substitute for developing expertise in representing parties in mediation. It is
only one kind of step. But I think it is a critical one, for without it lawyers will find it difficult to
open the door to frameworks other than the Distributive one. Without waiting for some
specialized training or graduation into expertise, by paying attention to the subject matters of
talk in mediation lawyers can bring themselves into congruence with mediators, or even influence
mediators and the other participants to step into the framework that the lawyers are seeking to
activate.
Nor is this advice a recipe for lawyer to seize control of mediations to the detriment of
mediators. I dont think there is much danger that lawyers will be able to unilaterally bend
mediations to their preferred framework simply by observing the subjects of discussion or by
trying to move the discussion into preferred subjects. Effective implementation of a framework
requires the collaboration of many, if not all, of the participants in the mediation. If only one
participant is speaking in terms of subjects characteristic of a framework, and the other
participants are not, the mediation as a whole will probably not proceed within that framework.
CONCLUSION
Mediation presents substantial opportunities and substantial challenges to lawyers
representing clients. The opportunities include speeding up the kind of positional negotiation that
lawyers often use for settling their clients cases, finding mutually beneficial settlement terms that
increase value for one side without imposing a corresponding loss on the other, repairing and
improving tattered relationships, and increasing clients understanding of themselves, their real
world situation, and the people with whom they find themselves in conflict. The challenges arise
because lawyers too often cannot or do not act in mediations in ways that will facilitate these
promising alternative means. When lawyers use familiar forms of positional bargaining instead
of the alternative cognitive frameworks for mediation, they cut off their clients from the benefits
that mediation can provide.
Hindering mediation in this way is not necessary. Lawyers can properly do their jobs of
representing clients in ways that enhance, rather than challenge, the benefits of mediation. To do
so, lawyers could adopt a variety of suggestions that have been offered in the mediation literature.
But these suggestions can appear scattershot, and can be difficult to work with in any consistent
or useful way. Instead, to align themselves with the work of mediators, lawyers need to embrace
the mental frameworks of mediation.
Many forms of mediation operate through mental frameworks that are different from the
positional negotiation of most legal disputing. Each of the four frameworks I describe
Distributive, Value-creating, Relationship, and Understanding provides a different way of
understanding the nature and content of the parties conflict. Each provides a different set of
goals and a different repertoire of talk to guide mediation. The Distributive framework conceives
of the problem as how to distribute contested resources between the parties, usually through
taking settlement positions and making demands and concessions. The Value-creating
framework understands that conflict arises from the parties desire to satisfy their underlying
needs and searches for ways to satisfy the needs of each without unnecessarily sacrificing the
needs of the other. Usually, this approach emphasizes tangible needs. The Relationship
framework attends to glitches or problems that have arisen in the parties relationship, such as
failed communication, difficulties in aligning expectations, and concerns for how the parties can
relate in the future. It places less emphasis on identifying and meeting tangible needs, relying on
the parties to deal with those concerns once their relationship and communication have become
more effective. The Understanding framework aims primarily at enhancing the parties
understanding of themselves and the others in the conflict. It trusts that if parties develop a
clearer understanding of what they want, who they are, and how they act, and if they can also
develop a clearer understanding of the perspectives and functioning of the other parties to the
conflict, the parties themselves will be better able to deal with their conflicts and disputes.
We might question whether lawyers can adopt such frameworks while they are
representing clients in mediation. The frameworks seem substantially different from the ways
lawyers think about legal matters. I conclude that lawyers can adopt the frameworks, even
though they would be strikingly out of place in a courtroom or other adjudicatory hearing. There
is nothing in the legal mind that would prevent lawyers from acting in terms of alternative,
mediation-friendly mental frameworks.
Adoption of the alternative frameworks also raises concern about legal ethics and loyalty
to clients interests. But a careful analysis of the frameworks and lawyers ethical limits shows
that lawyers should face no ethical prohibitions on adopting such frameworks. The alternative
frameworks often serve a clients interests in a broader fashion than more usual representation,
where asserting legal rights and maximizing a clients financial gain tend to dominate and drive
out other concerns. The opportunity to provide such benefits for clients creates at least a
moderate ethical obligation on lawyers to expand their repertoire to include such alternatives.
This is most clearly true when clients themselves express interest in outcomes that are different
from, or in addition to, the remedies that the courts can provide, or remedies that can be achieved
by a simple distribution of the available resources. The moderate ethical obligation exists even
when clients do not initially articulate or seek such different or broader outcomes. Lawyers, with
their experience in observing and managing conflict resolution, can foresee possibilities from the
process that clients may not see, justifying lawyers to pursue methods that will open up such
possibilities for their clients.
It is no simple matter to implement alternative frameworks. As I have described them, the
frameworks are not recipes or algorithmic guides, laying out a series of appropriate steps that one
can take once one has adopted a general theory. Instead, they tend to operate tacitly, providing
those who operate within them with a sense of what reactions, statements, and other mediation
moves make the most sense in a particular context and a particular moment. But there is a way
for practitioners to uncover what framework is actually operating, or what frameworks are
competing, at any given moment in a mediation, even if tacitly. The different frameworks tend to
focus on different subject matter areas. By attending to the subject matter categories that the
participants are talking about, and not just to the substance of what is being said, lawyers can
learn what frameworks they and the other participants seem to be using.
Seven different subject matter areas can reveal frameworks in operation: i.) What
happened and what it meant; ii.) What can or will happen in the future; iii.) Law and legal rights;
iv.) Fairness and moral rights; v.) Relationship; vi.) Feeling; and vii.) What someone wants, what
they can get, and how they can get it. While not exclusive to a specific framework, these
different subject matters will occur more frequently and more intensively in some frameworks
than in others. By attending to how long and in what detail the discussion stays in one of these
frameworks, a lawyer can get a sense of whether the others in the room are operating in a
particular framework. The subject matters are not only descriptive. By trying to move the
conversation into one of these subject areas, or by trying to keep it there, a lawyer, like a
mediator, can try to direct the mediation into a framework, or keep it in a framework, that will
most benefit her client.

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