Four Ways of Looking at a Lawsuit: How Lawyers Can Use the Cognitive Frameworks of Mediation

Lawyers who represent their clients in mediation may often find themselves at odds with their mediators. The mediators may be trying to create new value for the parties, beyond a simple compromise of their legalistic claims and defenses. They may be seeking to repair or improve the parties’ relationship, or they may wish to lead the parties to greater mutual understanding. Lawyers, on the other hand, are more likely to engage in adversarial, legalistic bargaining, looking only to gain the most, or to give up the least, through a process of compromise. As a result, the mediators’ approaches clash with those of the lawyers. The tensions are more deeply rooted than a simple difference in goals, tactics, or techniques; they arise from the different cognitive frameworks about the nature of conflict and the ways to deal with it that mediators and lawyers bring to their meeting. These cognitive frameworks, often operating tacitly and without an actor’s conscious awareness, create different and Professor of Law and Alfred C. Clapp Public Interest Scholar, Rutgers-the State University of New Jersey School of Law, Newark. Thanks to the many people who have taken the time to look at this paper or listen to me talk about it and have kindly offered their views and suggestions, including Beryl Blaustone, Douglas Frenkel, Jack Himmelstein, John Lande, John Leubsdorf, Carrie Menkel-Meadow, Mae Quinn, Leonard Riskin, and Nina Tarr. Thanks also to the participants of the Rutgers faculty colloquium, the Washington University in St. Louis ―New Directions in Dispute Resolution and Clinical Education‖ Roundtable, and the Marquette Works in Progress Conference for their insights and suggestions, particularly Howard Gadlin and Melissa Manwaring. Douglas Frenkel‘s and James Stark‘s first-rate writing on mediation got me thinking about whether lawyers‘ work in mediation is merely a result of their conscious intentions, or might be indicative of deeper cognitive frameworks. Special thanks also to the late Allen Axelrod, a noble presence for many years at Rutgers Law School, who in his usual succinct, respectful and crystalline way got me to restructure the entire Article. All misguided and other erroneous thoughts and expressions remain my own. Washington University Open Scholarship 12 Journal of Law & Policy [Vol. 34:11 competing perceptions among mediators and lawyers about what is relevant for the process and what is appropriate for them to do. The mediation literature has articulated four different, if overlapping, cognitive frameworks for dealing with conflict in a mediation setting: distributive compromise, creating more value for all, changing relationships, and increasing the mutual understanding of the parties in conflict. Mediators may move through all four, though they might tend to identify themselves with one in particular. Lawyers, however, tend to be limited to the first: distributive compromise. Understanding the cognitive frameworks shows how lawyers can operate congruently with mediators, rather than in opposition to them. The cognitive frameworks are versions of ways that people— lawyers included—ordinarily have available to deal with conflict. There is nothing inherent in “legal thinking” that prevents lawyers from shifting into non-adversarial frameworks in mediation. However, it is not easy to shift from one cognitive framework to another simply by wishing to do so. The different frameworks are characterized by different topics of conversation. Whether one talks about what happened in the past, what will happen in the future, the legal or moral meaning of the event, the parties’ feelings or their relationship, or how they intend to move into the future, the topic will suggest which particular cognitive framework is in use, and may influence the other participants to engage in the same framework.