from The National Jurist, May/June, 1997, page 43

Resolving Disputes

In the growing field of mediation, attorneys help clients resolve disputes, not through showdowns in the courtroom, but through sessions geared toward finding solutions that satisfy each side.  The non-adversarial approach of mediation is gaining popularity with courts and clients, who find it an efficient and cost effective way to resolve disputes.  And its luring recent graduates like Roshni Paul and Erica Fox into the field.  “An effective advocate often feels like they are hurting another person, and if you can destroy the adversary, then you did a good job,” Fox said.  “In mediation, you have to keep in mind the well-being of both parties.”  Before graduating from Harvard Law School in 1995, Fox learned mediation skills through clinical programs and served as a court mediator and liaison.  She went on to spend a year as a litigator in a law firm before becoming deputy director at Mediation Works Inc., a nonprofit dispute resolution center in the Boston area.  Paul was introduced to mediation and got hooked before she graduated from law school.  Now she manages the Americans with Disabilities A Mediation Program at the Key Bridge Foundation for Education and Research in Arlington, Va.  “My job is to help facilitate communications and to help develop options and proposals for a solution,” said Paul, a 1992 graduate of George Washington University’s National Law Center in Washington D.C.  “They (the clients) are the ones who make the decisions about how they want it to go.  I don’t make any decisions about the conflict, and I like that.  The goal for the whole process is win-win for both sides.” 

Fox and Paul agree that one of the benefits of working as a mediator is the opportunity to use communications skills on a more personal level – to discuss issues through dialogue rather than legal briefs.  “I found law school in general to be a fairly sterile experience,” Fox said.  “I found, in the mediation community, people who where balancing the mental stimulus of law with personal relations, and I got to help people at a personal level not just a doctrinal level.”  Fox said that many disputes involve personal issues that extend beyond the case and cannot be solved through litigation.  “I handles a case once where a claim was brought for $14 and it cost them $19 for them to file it in court, and they both had to miss a day of work to come to court,” she said.  ”You know that in these situations there’s more going on than the $14.  The $14 is a shorthand way of saying, ‘I’m mad at you.’”  A judge could have ordered both parties to pay $7 Fox said, but that would not have addressed the underlying anger.  The landlord-tenant dispute that brought the $14 claim to court was resolved after an hour-and-a-half mediation, Fox said.  “Mediation allows them, through a guided conversation, to figure out why they are there and how they can move forward from there,” she said.  “When people really communicate and come to a solution, you feel like you’re doing something really important to help them.”  Paul said her work as a mediator requires intense observation and good communication skills.  “You have to be able to understand where parties are through their body language, how the mediation develops, and listening really closely to what they’re saying,” she said.  “It keeps you on your toes.”  Mediation may seem less like a battle between two armed combatants than litigation, but Paul and Fox say there’s still plenty of conflict.  “Each side doesn’t see the other’s perspective generally and I have to get them communicating to bridge that gap,” Paul said.  But mediators must remain neutral, despite their close involvement with the parties, which can sometimes be a challenge.  Establishing clear boundaries for herself helps Paul keep her cool.  “I know that it’s for the greatest good for the parties, and for me, to be an impartial observer and for them to work out their disagreement,” Paul said.  “I acknowledge my feelings in myself and don’t let it affect the mediation, because I know this has to be a safe space for these parties to work out their problems.”  Mediation can sometimes have therapeutic benefits – but it is not psychotherapy.  “You’re entering conversations with people about their feelings and their perceptions, and sometimes it’s a tricky line to walk,” Fox said.   “You need to clarify for yourself that this is not a long term, ongoing relationship you are entering into with these people and that this isn’t therapy.”

Mediation has been growing in popularity as a less expensive and more expedient alternative to trying cases, but its still developing as a profession.  Most mediators with law degrees enter the field after working as attorneys, and most mediate on the side.  Those, like Fox and Paul, who move into the field full time generally work for one of a growing number of private mediation firms.  Some law firms also maintain mediation practice groups, but potential conflicts of interest have turned many law firms off the idea of supplementing traditional practice with mediation.  Mediators tend to earn relatively low starting salaries, Paul said.  She said mediators right out of law school can expect to earn about as much as public interest attorneys.  The starting salary for a public interest lawyer ranges from $30,000 to $35,000, according to the National Association for Law Placement.  The lower salaries are accompanied by reasonable work hours, however.  Paul’s typical day is 9-to-5, although 12-hour days are not uncommon, depending on the dispute she’s mediating.  She also puts in weekend hours when necessary.  “The pressure is there if something is happening in mediation and a complainant needs information sent to them,” she said.  “It can be stressful, but I think <other> attorneys have more pressures relating to time.” 

Because mediation requires clients to place a lot of trust in the mediator, breaking into the field can be tough for young attorneys, said Jerome Bagnell of Divorce Mediation Service In Chester, Va. “If you’re handling a custody case and the clients look at you as no older than their kids, you lose credibility as a mediator,” Bagnell said. “People typically picture mediators as wise, and they picture wisdom as someone older, with gray hair, who’s experienced life.” But mediators don’t have to have gray hair to succeed – they just need good training. Gary Gill-Austern, a mediator and associate at Nutter, McClennen & Fish in Boston, said the best way to learn mediation skills is to be trained by a good mediator, usually through fee-based training programs offered by mediation centers. “The way you learn in this field is to sit at the feet of those who do it well,” he said. After training, working with community centers and local courts is a good way to gain experience, Gill-Austern said. “The first mediation I started doing was in community programs that were affiliated with the local courts,” he said. I'd handled feuding families, landlord-tenant disputes, divorce, employment termination, assault and battery, etc.” Gill-Austern said attorneys interested in mediation must be creative in finding their niche. “You have to care about mediation, believe in the process, and be willing to go out there and create your own path,” he said. Fox says she has no regrets about leaving her career as a litigator. “I make less than half of what I made as a corporate attorney, but I wouldn’t call it a sacrifice,” Fox said. “Here I have autonomy over my time, a good balance of my personal life and work, and on a regular basis I get confirmation that I’m doing good work in the world. That’s personal satisfaction that money can’t bring you.”

Click here to return to the top of the page.

Click here to return to the article index.