As a young man I worked many jobs. Many years ago I became a member of the Iron and Steel Workers Union and I worked on a blast furnace belonging to United States Steel. I’ve worked as a roughneck in the Wyoming oilfields. I’ve been a rough carpenter on apartment buildings. I’ve driven a 10 wheel dump truck for an excavation company. I’ve been a small engine mechanic. And I served as a music director for a small theater company in Jackson Hole, Wyoming.
But I never spoke for anyone else until I became a lawyer.
When my kids were young they asked me what I did at work. I told them I “read a little bit, I write a little bit, and I talk on the phone. That’s about it.”
Somehow that didn’t seem very satisfying to them. But it was true.
What I didn’t tell them was that I regularly speak for other people. In fact, I do it almost every day.
It’s an unusual thing. All of us talk all day long – and we talk for ourselves. We read, we write, we talk. We rarely have someone else talk for us – until it comes to legal matters. When we work with lawyers, we often have people talk for us. A power of attorney let’s someone else speak for us, write for us, and even make decisions for us. But few of us spend much time working with powers of attorney.
But legal representation – I speak for people everyday. Sometimes it’s in court. Often it’s on the phone, or through a letter. I am a warrior. I’m a strategist. A river guide. And a counselor.
If we all speak for ourselves everyday, then why hire a lawyer? Why not just talk for ourselves?
Because we wouldn’t know what to say. And we wouldn’t know how to say it. And we want the power that stands behind a lawyer, and the respect that lawyers get. (This is true notwithstanding all of the lawyer jokes. My son reminds me that in all the world there are only three lawyer jokes and that all the rest are true stories).
Unless we’re a lawyer, or a student of political law and theory, most of us don’t even know our own rights. We hire someone else (a lawyer) to tell us what they are – and then pursue them for us.
So there are good reasons for paying someone else to speak for us.
What a different world is mediation! As mediator I deal with lawyers every day. And when I move between parties, I speak for those lawyers. What a remarkable thing! Each room has a client – the “real party in interest.” And most of those clients have lawyers with them – people they pay to speak for them. But instead of speaking to each others, these lawyers pay a neutral third party – a mediator – to speak for them. When I speak to the other side, my comments are truly two steps removed from the client.
Why do such a thing? Why add another layer of cost and complexity to a legal system that’s already far too complex?
Because it works. Litigation is based on distrust. Settlement is founded on trust. In order to be effective – and protective – a lawyer must embrace distrust, caution, suspicion. Otherwise, without adopting these viewpoints a lawyer can easily get blindsided.
Enter the mediator, who is a person without a dog in the fight. The mediator isn’t tied to either party. The mediator doesn’t really care who wins or who loses; who has a great case and who doesn’t. The mediator is focused on one thing, really: consensus. Above all else a mediator strives to build consensus.
It’s not easily done. A mediator must listen and be persuasive. They must have an understanding heart – and above all they must be patient and respectful. If a mediator can legitimately and honestly earn the trust of the parties (and their counsel) then a mediator is in a unique position to help the parties check their own realities, review their values and evaluate their priorities. In short, the mediator can help parties see things in a new light – and this can lead to settlement more quickly than almost anything else.
Could attorneys do this themselves? Of course. Cases are settled everyday without mediators. But when emotions are high, or when there’s strong distrust, or when somebody just doesn’t have a good grip on the risks, realities and costs of litigation – then a skillful mediator can speak for the other side and sometimes achieve something that just may not happen otherwise.
Mediating cases is unusual work. And the dynamics are fascinating. But it’s effective.
Robert B. Jacobs is a mediator in the San Francisco East Bay. He mediates real estate, business and construction law cases throughout California.