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Harvard Negotiation Law Review

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Mediation is a big business today that is practiced by lawyers and non-lawyers, and is closely related to the business of law. Lawyers have a long-standing monopoly on the law business and do not look favorably on sharing their power with nonlawyers. This phenomenon is odd because it occurs at the same time that the legal profession is beginning to embrace a new ethic of problem-solving that honors the values of collaboration and power-sharing among professionals in multiple disciplines. Lawyers protect their professional monopoly through the unauthorized practice of law ("UPL") doctrine that limits the practice of law to licensed professionals who have satisfied educational and moral requirements and have been admitted to state bars. The organized bar's use of UPL regulations to suppress competition from non-lawyer mediators has caused tensions and turf battles that inhibit the high-quality development of mediation as a profession. As a result, the public, especially unrepresented parties, lose out. In this Article, I call for a moratorium on mediation turf battles, and sketch a proposal that will advance the culture of problem-solving in the legal profession.