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Court Roster Mediators - What are your thoughts?

Should mediators who serve on court rosters have to be attorneys? For the purposes of a court roster, is there a difference between (a) a mediator who no longer practices law and only maintains a valid license to practice and (b) a non-attorney mediator, and if so, what is that difference and why does it matter?

Please provide your thoughts/comments below.

Comments (8)

I could see a preference for a lawyer, but sometimes a CPA could be effective in a damages dispute. Or, valuation issues

Barry Evenchick :

I believe that court rosters should be comprised of practicing attorneys. The rules of practice and the decisionsl law are evolving constantly. Lay people and. retired attorneys almost by definition are not likely to be up to speed on these things and thus not well quLified to serve as mediators.

Edwin H. Stern:

I believe that a mediator should be familiar with legal issues in order to help focus the mediation and help obtain a successful disposition. I recognize that there is a debate within the mediation profession as to whether the mediator should give his or her opinion on an issue, or even whether he or she should answer a question from a party regarding the law. However, knowing the governing legal principles, at least to some degree, is essential to help the parties appreciate the strengths and weaknesses of their case and the risks of a result they would want to avoid by reaching an acceptable disposition. In my view, an attorney admitted to the practice should, therefore, serve as mediator. There may be nonlawyer experts in a particular field who might know the law, but I am not sure how that can be easily tested, and I have difficulty in drawing a line between active legal practitioners and those who may no longer be active in the legal practice (except for ADR) but had an expertise or remain aware of legal developments, so for ease of creating and maintaining the court roster, I believe the list of mediators should be limited to attorneys but should include retired
members of the Bar who remain in good standing.

Jose W Cartagena:

Why do mediators, or arbitrators for that matter, need to be lawyers? Most of what you need is a lot of common sense to be a good mediator or arbitrator. My impression is that most of the criticism mediation and arbitration get comes from the over-legalistic approach to these processes; making them foreign to anybody but a lawyer.

In New Jersey, the Administrative Office of the Court does not distinguish between lawyers, and non-attorneys who have earned a Masters' Degree, or higher. To the extent a litigated claim involves technically complex disputes (construction, employment, or patent) mediators who understand the intricacies of the disputed issue often are preferable. Sometimes attorneys possess such qualifications, and other times not.

With no disrespect to retired members of the judiciary, their mix of talents do not always foster ideal mediation skills and/or orientation to dispute resolution.

Roslyn Harrison:

Court rosters are used for referrals from Judges from the Court, therefore, for matters involved in litigation. I agree with Barry Evenchick that it is important that the mediators be aware of the relevant law concerning the matter in addition to having mediator skills. As to whether a retired lawyer should be able to serve, the parties have the responsibility to provide the relevant law on the matters at issue so it depends on whether that lawyer has retained their analytical skills. It is also helpful if the lawyer has been a litigator.

Micalyn S. Harris:

Some familiarity with litigation is helpful but a litigation mindset may not be. Mediation is more like deal-making than litigation so experience with mergers and acquisitions and financing arrangements for businesses can be invaluable in working out creative resolutions, sometimes that a court could not order, for disputing parties.

Court mediator rosters are a helpful way to organize information about mediators and to broaden access to different mediators. Rosters can be very helpful when information is provided regarding the mediator's particular areas of experience. Access to diverse mediators continues to be a problem, and rosters can provide new mediators with experience and exposure. Assignment of mediators can help ensure that diverse mediators get assignments. One problem is that unpaid court mediation can be a substantial roadblock to mediators who actually need to make a living. Not paying mediators also sends a message about the value the court places on mediation and the degree of respect afforded to mediators.

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This page contains a single entry from the blog posted on December 2, 2018 12:17 PM.

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