resolving_issues_with_your_boss

01/19/2025:

Resolving Issues with Your Boss (Part 9):

Non-Attorney Mediators

Summary of Part 8

Part 8 discussed the dispute management methods of litigation, arbitration, negotiation, and mediation. Each serves different purposes and involves the hiring of attorneys in varied ways. Litigation follows formal court procedures, while arbitration is more private and flexible, with decisions typically binding. Negotiation focuses on direct discussions, and mediation employs a neutral facilitator. Attorneys are central in all processes, providing legal strategy and advice. However, attorneys may not always be trained in mediation techniques, which can create bias and lead to prolonged negotiations and higher costs. Their fees can also limit their continued involvement. By understanding each approach, individuals can make informed decisions for resolving conflicts while maintaining relationships and achieving fair outcomes.

Non-Attorney Mediators

Law society discussions are outside the scope of this series; however, it's important to recognize that the potential coercive authority of the state underpins the power of the law. Once an attorney enters the picture, that legal power is at play, and if things go poorly, legal consequences may arise. Within a workplace context, if a dispute escalates to the Human Resources (HR) Department, you’ve entered the realm of the law and, by extension, the domain of lawyers.

Mediation, however, offers a voluntary, confidential, and informal way to resolve conflicts without resorting to litigation. At the heart of mediation is the mediator, a neutral third party who facilitates communication and negotiation between the disputing parties to help them reach a mutually agreeable solution. While many mediators are attorneys, non-attorney mediators are also widely employed and offer unique skills and perspectives.

There are instances when hiring an attorney may be counterproductive, as it can escalate tensions and the stakes in a dispute. This typically occurs when the nature of the conflict or the relationship between the parties would benefit more from collaboration and trust than formal legal advocacy. Family or interpersonal conflicts, for instance, are examples where non-attorney mediation is more appropriate. Many states also have small claims courts that allow individuals to resolve civil cases without legal representation, keeping the process informal and cost-effective.

Non-attorney mediators can also benefit collaborative settings such as business partnerships, long-term contracts, and community or neighborhood disputes. These mediators can help preserve relationships and maintain harmony. Workplace disputes, for example, are often best addressed through internal resolution processes, avoiding the need for legal representation. Escalating a workplace dispute could damage professional relationships or reputations.

Workplace and Employment Mediation

In the United States, non-attorney mediators are employed in various legal and non-legal contexts. While attorneys often serve as mediators due to their legal training, non-attorney mediators bring valuable expertise in specialized fields, offering a neutral, non-legal perspective. Non-attorney mediators are commonly used in court-annexed mediation programs, family mediation, community disputes, and workplace disputes.

Focusing on workplace disputes, non-attorney mediators regularly engage in issues like discrimination, harassment, wrongful termination, and wage disputes. Many employers, particularly large corporations, have established Alternative Dispute Resolution (ADR) programs, which include mediation to resolve internal conflicts without litigation. Non-attorney mediators specializing in employment law, industrial relations, or human resources can effectively address these issues by helping both employees and employers find solutions that promote workplace harmony while minimizing the risk of costly legal battles.

Though they may not have formal legal training, many non-attorney mediators in the workplace have backgrounds in human resources, organizational development, or conflict resolution. This specialized expertise helps them navigate the nuances of employer-employee relationships. Such mediators are trained to understand human behavior and organizational dynamics, which are crucial for resolving workplace conflicts effectively.

The role of non-attorney mediators in workplace disputes is similar in many countries outside the U.S. For example:

In the United Kingdom, non-attorney mediators, often with backgrounds in human resources or industrial relations, are utilized to resolve employee-employer conflicts. The UK places more emphasis on ensuring that mediators have the necessary skills to understand the issues at hand rather than focusing on legal training.

In Australia, workplace disputes are frequently mediated by professionals specializing in industrial relations or human resource management. Mediation in Australia is a common method for resolving conflicts before they escalate to formal litigation or industrial action.

In many European Union countries, non-attorney mediators, often with backgrounds in business, industrial relations, or organizational psychology, mediate workplace and commercial disputes. ADR is strongly promoted across the EU, and the role of non-attorney mediators continues to grow as mediation becomes more widely adopted.

Training of Non-Attorney Mediators

The training of non-attorney mediators is a critical aspect of the mediation process. Although non-attorney mediators do not need legal training, they must possess specific skills and knowledge to manage the mediation process and facilitate conflict resolution effectively.

Key skills for non-attorney mediators include active listening, conflict management, negotiation, and emotional intelligence. They must be adept at facilitating communication, managing high-stress situations, and maintaining neutrality. These skills are typically honed through specialized training programs, which may involve coursework, role-playing exercises, and hands-on practice.

Non-attorney mediators are also trained to be impartial, avoiding taking sides and fostering a collaborative problem-solving approach. They must understand the emotional and psychological factors that influence a dispute and guide the parties toward mutually beneficial solutions.

Workplace mediators, for example, might undergo training in labor laws, employee rights, and organizational behavior. Training in community mediation may focus on local social dynamics, community organizing, and restorative justice principles.

Although non-attorney mediators are not expected to offer legal advice or representation, they are generally required to have a basic understanding of relevant laws and regulations in the area in which they mediate. In family law, for example, mediators should be familiar with child custody laws; in workplace disputes, they should have a basic understanding of employment rights and labor laws. This knowledge ensures that the solutions reached are legally viable, even though the mediator is not providing legal counsel.

In many jurisdictions, non-attorney mediators must undergo formal certification or accreditation processes. These programs may involve educational courses, training workshops, and a specific number of supervised mediation hours. Accreditation ensures that mediators meet professional standards and are capable of handling complex disputes effectively. Certification bodies like the American Arbitration Association (AAA) and the Association for Conflict Resolution (ACR) offer credentials for mediators, and similar organizations exist globally.

Considerations to Keep in Mind

You have the legal right to choose not to retain an attorney to mediate your dispute, as long as mediation is voluntary and not required by a court order or specific contractual agreement. However, depending on the dispute's complexity and stage, several factors should be considered:

If the dispute has not escalated to formal litigation or arbitration, you can engage a mediator directly without an attorney. This is often a cost-effective and informal route, particularly for small claims, personal issues, or neighborhood disputes where involving an attorney might escalate tensions and harm relationships.

In some jurisdictions, courts may require mediation as part of the litigation process. While you are not legally obligated to have an attorney, having legal representation can help protect your rights and interests, especially in complex cases.

If your contract requires mediation before pursuing litigation or arbitration, you're typically not required to involve an attorney unless specified in the contract. However, consulting an attorney beforehand to understand your legal position may be beneficial.

In disputes involving specialized knowledge, such as intellectual property or business contracts, consulting an attorney can be wise, even if it's not legally required.

For more complex disputes, seeking legal counsel is generally advisable.

If the dispute involves binding agreements, like a union contract, or if the other party is represented by an attorney, hiring your lawyer can level the playing field. Ultimately, while you can legally mediate without an attorney, the decision should be based on the complexity and stakes of the dispute.

Conclusion

Non-attorney mediators play a vital role in resolving a wide range of disputes in the United States and internationally. From family law to workplace conflicts, non-attorney mediators help alleviate court burdens and foster collaborative solutions. While they do not require legal training, non-attorney mediators must possess specific skills, including conflict resolution expertise and a basic understanding of the relevant legal framework. Through targeted training and certification, non-attorney mediators are well-equipped to navigate complex disputes and facilitate productive resolutions.

* Note: A pdf copy of this article can be found at:

https://www.mcl-associates.com/downloads/resolving_issues_with_your_boss_part9.pdf

References

Boulle, L. (2005). Mediation: Principles, process, practice. LexisNexis Butterworths.

Bush, R. A. B., & Folger, J. P. (2005). The promise of mediation: Responding to conflict through empowerment and recognition. Jossey-Bass.

Conley, J. M., & O'Barr, W. M. (2005). Mediation in context: Non-attorneys and their role in dispute resolution. Law and Social Inquiry, 30(2), 571-603.

Kolb, D. M., & Bartunek, J. M. (1992). Negotiation and mediation: The role of the third-party intermediary. Negotiation Journal, 8(2), 101-117.

Moffitt, M. L., & Bordone, R. C. (2005). The role of mediators in non-attorney dispute resolution. Dispute Resolution Journal, 60(3), 72-81.

Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict (4th ed.). Jossey-Bass.

While listening to an audiobook on the Medici by Paul Strathern, I was presented with a historical citation that I knew to be incredibly inaccurate. In a chapter entitled, "Godfathers of the Scientific Renaissance". discussing the apocryphal tale of Galileo's experiment conducted from the Leaning Tower of Pisa, the author cites Neil Armstrong in the Apollo 11 flight to the Moon with its memorable modern recreation, using a hammer and a feather.

Attributing this famous experiment to Armstrong on Apollo 11 is incorrect. It occurred on August 2, 1971, at the end of the last EVA of Apollo 15, presented by Astronaut Dave Scott. To press the point further, Scott used a feather from a very specific species: a falcon's feather. This small piece of trivia is memorable since Scott accompanied by crew member Al Worden arrived on the Lunar surface using the Lunar Module christened, "Falcon".

In an instant, the author's faux pas – for me -- undercut the book's entire validity. In an instant, it soured my listening enjoyment.

Mr. Strathern is approximately a decade my senior. As a well-published writer and historian, it is presumed that he subscribes to the professional standards of careful research and accuracy. Given this well-documented piece of historical modern trivia, I cannot fathom how he got it so wrong. Moreover, I cannot figure out how such an egregious error managed to go unscathed through what I assumed was a standard professional proofreading and editing process.

If the author and the publisher’s many editorial staff had got this single incontrovertible event from recent history wrong, what other counterfactual information did the book contain?

What is interesting to me, is my own reaction or -- judging from this narrative – some might say, my over-reaction to a fairly common occurrence. Why was I so angry? Why could I not just shake it off with a philosophical, ironic shake of the head?

And that is the point: accidental misinformation, spin and out-and-out propaganda -- and the never-ending stream of lies, damned lies, and unconfirmed statistics whose actual methodology is either shrouded or not even attempted -- are our daily fare. At some point, it is just too much to suffer in silence.

I have had enough of it.

God knows I do not claim to be a paragon of virtue. I told lies as a child, to gloss over personal embarrassments, though I quickly learned that I am not particularly good at deception. I do not like it when others try to deceive me. I take personal and professional pride in being honest about myself and my actions.

Do I make mistakes and misjudgments personally and professionally? Of course, I do. We all do. Have I done things for which I am ashamed? Absolutely. Where I have made missteps in my life, I have taken responsibility for my actions, and have apologized for my actions, or tried to explain them if I have the opportunity to do so.

For all of these thoughtless self-centered acts, I can only move forward. There is nothing I can do about now except to try to do grow and be a better human being in all aspects of my life. That's all any of us can do. I try to treat others as I wish to be treated: with honesty and openness about my personal and private needs, and when I am able to accommodate the wants and needs of those who have entered the orbit of my life.

We all have a point of view. Given the realities of human psychology and peer pressures to conform, it is not surprising that I or anyone else would surrender something heartfelt without some sort of struggle. However, we have a responsibility to others -- and to ourselves -- to not fabricate a narrative designed to misinform, or manipulate others.

Lying is a crime of greed, only occasionally punished when uncovered in a court of law
I am sick to death with liars, “alternative facts” in all their varied plumages and their all too convenient camouflage of excuses and rationales. While I am nowhere close to removing this class of humans from impacting my life, I think it is well past the time to start speaking out loud about our out-of-control culture of pathological untruthfulness openly.

Lying about things that matter -- in all its many forms, both overt and covert -- is unacceptable. When does lying matter? When you are choosing to put your self-interest above someone else’s through deceit.

Some might call me a "sucker" or "hopelessly naive". I believe that I am neither. Our species - as with all living things -- is caught in a cycle of both competition and cooperation
We both compete and cooperate to survive.

There is a sardonic observation, “It’s all about mind over matter. If I no longer mind, it no longer matters”. This precisely captures the issue that we all must face: the people who disdainfully lie to us – and there are many – no longer mind. We – the collective society of humanity no longer matter, if for them we ever did.

We are long past the time when we all must demand a new birth of social norms. We all have the responsibility to maintain them and enforce them in our own day-to-day lives. Without maintaining the basic social norms of honesty and treating others as you wish to be treated in return, how can any form of human trust take place?