Notre Dame Law Review
That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In this article, Professor Nolan-Haley focuses primarily on client counseling activities and argues that if mediation client counseling is firmly grounded in a deliberative and problem-solving process, the mediated negotiations that follow will be responsive to clients' real needs and interests. In mediation client counseling, deliberation calls for greater attention to the principle of informed consent. Clients must be informed that deliberative counseling has as its goal, informed decisionmaking, both in the attorney-client relationship and in the mediation process. They should be advised of the roles that both attorney and client will play in it. Clients must also be educated about the mediation process and understand its essential differences from litigation. Finally, clients must have a general knowledge about the relevant law governing their case so that during deliberations they may meaningfully evaluate alternative courses of action. Clients' awareness of their legal rights honors the principle of informed consent. The heart of the deliberative process is the exchange of ideas and debate between attorney and client about ends and means, goals and strategies. In this process of co-deliberation, trust is enhanced and the autonomy of both lawyer and client is honored. Trust, an essential part of all human relationships, provides the foundational structure for the mediation counseling relationship.
Lawyers, Clients, and Mediation , 73 Notre Dame L. Rev. 1369
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/281