The Role of Attorneys in Court Ordered Mediations in North Carolina: The Pilot Phase (Hors Serie)

This book explores the extent to which lawyers' attitudes and practices have changed with the growth of mediation and whether lawyers have altered mediation to suit their needs. Such information is crucial to a complete understanding of how mandatory mediation operates in the context of legal practice within an adversarial court system. North Carolina's Mediated Settlement Conference (MSC) Pilot Program represents a new facet of the dispute resolution movement in American courts: the mandatory use of mediation in large non-domestic civil suits. The leading actors in this court reform effort are private professionals - the attorneys who are the program's political entrepreneurs, its certified mediators, and its primary negotiators. The central role of attorneys in mediation raises questions about this attempt to reform civil procedure. While the legal profession values competition and zealous advocacy, mediation has traditionally stressed cooperation and problem-solving by the disputants. The findings presented here suggest that this mediation program provides public sanction for an essentially private dispute resolution process. Settling cases through mediated settlement conferences is not drastically different from lawyers' routine settlement procedures. While mediation appears to dampen some of the more competitive tendencies present in nonmediated settlement negotiation, mediation does not transform lawyers' approach to negotiation. Attorneys benefit from the mediation program in several ways. Nearly all mediators certified under the MSC program's rules are attorneys, and mediating has become a popular and competitive form of legal practice. More generally, attorneys practicing civil law support the program because mediation helps them overcome some problems in their ordinary settlement procedures and allows them to retain control over their cases. The mediation program provides structure to an otherwise prolonged and amorphous settlement process, and attorneys acting as counsel can enlist mediators as allies in dealing with difficult clients. Furthermore, the program is administered in such a way that attorneys can often prevent a mediation from occurring if they so desire, which allows them to use mediation strategically.