Many believe that lawyers' adversarial methods and mindsets are inherently inconsistent with mediation. Lawyers' emphasis on advocacy and winning is seen as ill-suited to mediation's nonadversarial, problem-solving approach to dispute resolution. Yet, as mediation grows increasingly common, lawyers are frequently accompanying their clients to mediation and often play a critical and direct part in the process. Particularly where disputes are complex or involve relatively large sums of money, it is likely that one or both disputants will be represented by an attorney at the mediation.
This Article argues that attorneys need not and ought not to abandon their advocacy or even their adversarial approach in mediation. Properly understood, attorney advocacy and even "adversarialness" are entirely consistent with mediation.
Nonetheless, this Article crucially contends that attorneys must redefine their method of advocacy or role to fit the mediation forum. Lawyers should seek to serve their clients' best interests, but they should recognize that traditional hard-nose, uncooperative litigation tactics may often harm rather than help their clients in mediation. They should work with their clients to choose an approach which best serves the clients' needs and interests in the particular dispute.
14 Ohio St. J. On Disp. Resol. 269 (1999).
Sternlight, Jean R., "Lawyers' Representation of Clients in Mediation: Using Economists and Psychology to Structure Advocacy in a Non-Adversarial Setting" (1999). Scholarly Works. Paper 269.