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Mediation is an important part of many lawsuits during which the parties meet with a neutral mediator to try and resolve the issues in a lawsuit without going to trial. Not all cases are mediated, but mediation can often be a helpful process because it can show plaintiffs and defendants the strengths and weaknesses of their cases and help the parties come to a common ground to resolve a matter. Over the course of my career, I have worked with numerous mediators who were also trained lawyers, and individuals with a legal background can have important insight about matters. However, I have also had mediators who are nonlawyers, and these experiences showed me how nonlawyers can make effective mediators in many circumstances.
A jurisdiction in which I practice has a mediation program for all matters that fit into a certain category of cases, and all types of people can apply to be court-appointed mediators. Many of the mediators are lawyers, but some are teachers, veterans, and other professionals who did not have legal training. Usually, mediators without a legal background charged less, so my clients and I usually did not mind having nonlawyer mediators.
Nonlawyer mediators can bring important perspective to a mediation. Perhaps, most importantly, nonlawyer mediators can provide insight about a matter from a layman’s point of view, which is important when considering how juries may view a case. Most people who serve on juries are not lawyers (partly because lawyers are rarely picked for juries!), and nonlawyers may help inform counsel and parties about how individuals without legal training view a matter. Sometimes, it can be helpful to know that a legal strategy might not have the intended impact on a finder of fact, and a nonlawyer mediator can reason with counsel and parties about the weakness of arguments from a nonlegal perspective.
Another reason why nonlawyers can make good mediators is since they might be able to build better rapport with clients who do not have a legal education. When clients speak to lawyers who are mediators, such mediators may use legal terms and discuss topics that might not seem relevant to a case from a layman’s perspective. However, a nonlawyer mediator is more likely to speak to parties in plain language, which can be helpful to getting a point across. Moreover, the mediator’s background in a career other than law can help parties feel more comfortable speaking with the mediator.
I have been assigned mediators who have had remarkable careers in the military, teaching, and in other walks of life. These mediators sometimes talk about their background to the parties either directly or by using illustrative examples drawn from their experience. This can help mediators connect with parties, which is a huge part of the trust and rapport that is necessary for the mediation process to be successful. Moreover, many individual plaintiffs and defendants may not have much faith in the legal system, since the judicial process often takes a very long time to reach a resolution and costs a lot of money. Accordingly, parties may trust nonlawyer mediators that may seem farther removed from the legal system than mediators who are lawyers themselves.
Some might believe that the legal issues involved in many mediations might be too difficult for nonlawyers to properly mediate. However, the vast majority of mediations involve issues that are pretty easy for a nonlawyer to handle. For instance, I once had a nonlawyer mediate a breach of contract lawsuit, and it was fairly easy for the mediator to read the language of the contract and discuss everyone’s arguments regarding their rights and responsibilities under the contract. Another time, I was mediating a premises liability case, and it was easy for everyone to understand issues surrounding whether liquid was on the floor long enough that the defendant was liable for the damages suffered by the plaintiff. Of course, there are some cases that involve complicated legal issues that might be too difficult for a nonlawyer to properly mediate. However, these cases are few and far between, and if we are really honest with ourselves, most run-of-the-mill mediations involve legal issues that are not too difficult for nonlawyers to comprehend. In fact, nonlawyers on juries will ultimately be the deciders of fact for many such matters if they are not successfully mediated and eventually tried to a verdict.
All told, lawyers probably feel most comfortable using mediators who have legal backgrounds since they can explain legal theories to these professionals with the expectation that a mediator’s legal training will help them understand the points at hand. However, nonlawyers may be just as efficient, if not more impactful, than mediators with legal training in many situations. Since nonlawyer mediators in certain circumstances may charge less than mediators who are lawyers, attorneys should more often consider using the services of nonlawyer mediators in a variety of circumstances.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].
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