Lawyers, clients, and mediation

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1369-1390

  Nolan Haley, Jacqueline M ^a,b  

^a Fordham Law School ^*

^b Fordham Law School Mediation Clinic

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EID: 0032397890     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (191)

1. BILL VEECK, THE HUSTLER'S HANDBOOK 335 (1965).
2. MARY ANN GLENDON, A NATION UNDER LAWYERS: How THE CRISIS IN THE LEGAL PROFESSION Is TRANSFORMING AMERICAN SOCIETY 107 (1994).
3. See, e.g., Thomas M. Reavley, Rambo Litigators: Pitting Aggressive Tactics Against Legal Ethics, 17 PEPP. L. REV. 637 (1990); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 511 n.9 (1994).
4. See, e.g., Thomas M. Reavley, Rambo Litigators: Pitting Aggressive Tactics Against Legal Ethics, 17 PEPP. L. REV. 637 (1990); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 511 n.9 (1994).
5. GLENDON, supra note 2. Glendon joins other critics in her concern for the disoriented condition of the legal profession. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ, THE BETRAYED: PROFESSION LAUVERING AT THE END OF THE TWENTIETH CENTURY (1994). The sorry state of affairs has led some states to develop civility standards to guide attorney's professional behavior. See New York State Standards of Civility, discussed in N.Y. STATE BAR NEWS, Nov.-Dec. 1997, at 1, 3 (standards on file with the author). But see Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995) (arguing that a business paradigm is more likely to improve the conduct and reputation of the bar).
6. GLENDON, supra note 2. Glendon joins other critics in her concern for the disoriented condition of the legal profession. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ, THE BETRAYED: PROFESSION LAUVERING AT THE END OF THE TWENTIETH CENTURY (1994). The sorry state of affairs has led some states to develop civility standards to guide attorney's professional behavior. See New York State Standards of Civility, discussed in N.Y. STATE BAR NEWS, Nov.-Dec. 1997, at 1, 3 (standards on file with the author). But see Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995) (arguing that a business paradigm is more likely to improve the conduct and reputation of the bar).
7. GLENDON, supra note 2. Glendon joins other critics in her concern for the disoriented condition of the legal profession. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ, THE BETRAYED: PROFESSION LAUVERING AT THE END OF THE TWENTIETH CENTURY (1994). The sorry state of affairs has led some states to develop civility standards to guide attorney's professional behavior. See New York State Standards of Civility, discussed in N.Y. STATE BAR NEWS, Nov.-Dec. 1997, at 1, 3 (standards on file with the author). But see Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995) (arguing that a business paradigm is more likely to improve the conduct and reputation of the bar).
8. See GLENDON, supra note 2, at 35-36.
9. See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 109-44 (1991).
10. See GLENDON, supra note 2, at 101, 247.
11. See id. at 40-59.
12. The role of the lawyer who represents a party in connection with the mediation process is conceptually and professionally distinguishable from that of the lawyer who mediates a dispute between two parties. See infra text accompanying notes 47-59.
13. This is part of my larger project which examines the nature of informed con-sent in mediation.
14. Glendon claims that rights rhetoric fails to recognize the "social dimensions of human personhood." GLENDON, supra note 6, at 109.
15. See, e.g., id. at 179.
16. See generally Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29 (1982); Jacqueline Nolan-Haley & Maria R. Volpe, Teaching Mediation as a Lawyering Role, 39 J. LEGAL EDUC. 571, 579-80 (1989).
17. See generally Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29 (1982); Jacqueline Nolan-Haley & Maria R. Volpe, Teaching Mediation as a Lawyering Role, 39 J. LEGAL EDUC. 571, 579-80 (1989).
18. See, e.g., Raoul Lionel Felder, I'm Paid to Be Rude, N.Y. TIMES, July 17, 1997, at A23.
19. See MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard I (American Arbitration Ass'n, American Bar Ass'n, and Society of Professionals in Dispute Resolution 1994) [hereinafter MODEL STANDARDS]. See also John D. Feerick, Toward Uniform Standards of Conduct for Mediators, 38 S. TEX. L. REV. 455 (1997).
20. In the words of the late law Professor Lon Fuller: "[M]ediation is commonly directed, not toward achieving conformity to norms, but toward the creation of the relevant norms themselves." Lon L. Fuller, Mediation - Its Forms and Functions, 44 S. CAL. L. REV. 305, 308 (1971).
21. GLENDON, supra note 6, at 45.
22. Professor Fuller's classic definition of the mediation process captures these essential characteristics. Mediation, he observes, has the "capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another." Fuller, supra note 16, at 325.
23. See Riskin, supra note 13, at 57.
24. Long before the current popular appeal of mediation, John Noonan reminded us of the extent to which law has ignored persons in favor of rules. JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 9-14 (1976). Scholars continue to be concerned with the extent to which law and legal education undervalue the human element. See, e.g., Julius G. Getman, Human Voice in Legal Discourse, 66 TEX. L. REV. 577 (1988); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991).
25. Long before the current popular appeal of mediation, John Noonan reminded us of the extent to which law has ignored persons in favor of rules. JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 9-14 (1976). Scholars continue to be concerned with the extent to which law and legal education undervalue the human element. See, e.g., Julius G. Getman, Human Voice in Legal Discourse, 66 TEX. L. REV. 577 (1988); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991).
26. Long before the current popular appeal of mediation, John Noonan reminded us of the extent to which law has ignored persons in favor of rules. JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 9-14 (1976). Scholars continue to be concerned with the extent to which law and legal education undervalue the human element. See, e.g., Julius G. Getman, Human Voice in Legal Discourse, 66 TEX. L. REV. 577 (1988); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991).
27. For a discussion of additional goals which have inspired the development of mediation and other ADR processes, see STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION AND OTHER PROCESSES 6-9 (2d ed. 1992).
28. See S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW (1969). I thank Catherine McCauliff, my first teacher of English legal history, for reminding me of this connection.
29. For a discussion of the influence of these values in the early development of legal ethics in the adversary system, see Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Code, 6 GEO J. LEGAL ETHICS 241 (1992); THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY 32-39 (1994) (discussing the gentleman-lawyer tradition).
30. For a discussion of the influence of these values in the early development of legal ethics in the adversary system, see Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Code, 6 GEO J. LEGAL ETHICS 241 (1992); THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY 32-39 (1994) (discussing the gentleman-lawyer tradition).
31. ADR has developed over the past twenty-two years. Mediation was promoted as a nonjudicial method of dispute resolution at the Pound Conference in 1976. See Frank E.A. Sander, Varieties of Dispute Processing, in THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE: PROCEEDINGS OF THE NATIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE 65 (1979).
32. One writer has described a new "dispute resolution environment as a 'liti-mediation' culture, in which it becomes taken for granted that mediation is the normal way to end litigation." John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 841 (1997). See generally Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407 (1997).
33. One writer has described a new "dispute resolution environment as a 'liti-mediation' culture, in which it becomes taken for granted that mediation is the normal way to end litigation." John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 841 (1997). See generally Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407 (1997).
34. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY xx (1988).
35. See id.
36. See GLENDON, supra note 2, at 102-08.
37. See infra text accompanying note 83.
38. See, e.g., Lande, supra note 25, at 850; James J. Alfini, Trashing, Bashing and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47 (1991).
39. This theme was echoed at the International Conference of the Society of Professionals in Dispute Resolution (SPIDR) held in September 1997 in Orlando, Florida. One workshop, "Bringing Out the Best in Lawyers," explored the destructive effect that lawyers can have on a mediation session (audiotape on file with the author).
40. See infra text accompanying notes 80-86.
41. See David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 VAND. L. REV. 717, 737-40 (1988).
42. One of the current textbooks used in some law school mediation courses describes ten definitions of the mediation process. See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 16-17 (1994).
43. To the extent that the mediation process focuses on parties' real needs and interests rather than on the positions they assert, it is a process based on problemsolving negotiation. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 2d ed. 1991); Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984).
44. To the extent that the mediation process focuses on parties' real needs and interests rather than on the positions they assert, it is a process based on problemsolving negotiation. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 2d ed. 1991); Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984).
45. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); DEBORAH M. KOLB ET AL., WHEN TALK WORKS: PROFILES OF MEDIATORS (1994); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7 (1996); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703 (1997).
46. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); DEBORAH M. KOLB ET AL., WHEN TALK WORKS: PROFILES OF MEDIATORS (1994); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7 (1996); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703 (1997).
47. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); DEBORAH M. KOLB ET AL., WHEN TALK WORKS: PROFILES OF MEDIATORS (1994); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7 (1996); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703 (1997).
48. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); DEBORAH M. KOLB ET AL., WHEN TALK WORKS: PROFILES OF MEDIATORS (1994); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7 (1996); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703 (1997).
49. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); DEBORAH M. KOLB ET AL., WHEN TALK WORKS: PROFILES OF MEDIATORS (1994); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7 (1996); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703 (1997).
50. See, e.g., James J. Alfini, Evaluative Versus Facililative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); Riskin, supra note 36.
51. E.g., Alfini, supra note 30, at 47. It should be noted that mediation can be a voluntary or mandatory undertaking. While the essence of the actual mediation process is voluntary, increasingly, mediation is becoming a procedural requirement for trial or administrative relief.
52. See Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329 (1984); Special Issue, Beyond Technique: The Soul of Family Mediation, 11 MEDIATION Q. 1 (1993).
53. See Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329 (1984); Special Issue, Beyond Technique: The Soul of Family Mediation, 11 MEDIATION Q. 1 (1993).
54. E.g., BUSH & FOLGER, supra note 36.
55. MODEL STANDARDS, Standard I, Comment.
56. E.g., BUSH & FOLGER, supra note 36.
57. Some clients may prefer to have their lawyers speak for them in mediation. See infra text accompanying notes 53-57.
58. Professor Robert Dinnerstein reminds us of the importance in the clinical movement of clients being able to tell their stories in the advocacy and litigation setting. See Robert D. Dinnerstein, Clinical Texts and Contexts, 39 UCLA L. REV. 697, 723-25 (1992) (book review).
59. This should also be true in traditional adversarial law practice when lawyers listen to their clients.
60. See GLENDON, supra note 2, at 35-36.
61. See Preamble to the MODEL RULES OF PROFESSIONAL CONDUCT, § 2, A Lawyer's Responsibilities, in 1996 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (Thomas D. Morgan & Ronald D. Rotunda, eds., 1996).
62. There is little empirical data comparing mediation to other forms of dispute resolution. See Jeanne M. Brett et al., The Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers, 12 NEGOT. J. 259 (1996). For a prediction of a rule that would require lawyers to allow clients to pursue mediation, see Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819, 825-839 (1990).
63. There is little empirical data comparing mediation to other forms of dispute resolution. See Jeanne M. Brett et al., The Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers, 12 NEGOT. J. 259 (1996). For a prediction of a rule that would require lawyers to allow clients to pursue mediation, see Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819, 825-839 (1990).
64. See, e.g., DWIGHT GOLANN, MEDIATING LEGAL DISPUTES: EFFECTIVE STRATEGIES FOR LAWYERS AND MEDIATORS 125-26 (1996); Robert A. Baruch Bush, "What Do We Need Mediation For?": Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996); Robert H. Mnoonkin, Why; Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 OHIO ST. J. ON DISP. RESOL. 235 (1993).
65. See, e.g., DWIGHT GOLANN, MEDIATING LEGAL DISPUTES: EFFECTIVE STRATEGIES FOR LAWYERS AND MEDIATORS 125-26 (1996); Robert A. Baruch Bush, "What Do We Need Mediation For?": Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996); Robert H. Mnoonkin, Why; Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 OHIO ST. J. ON DISP. RESOL. 235 (1993).
66. See, e.g., DWIGHT GOLANN, MEDIATING LEGAL DISPUTES: EFFECTIVE STRATEGIES FOR LAWYERS AND MEDIATORS 125-26 (1996); Robert A. Baruch Bush, "What Do We Need Mediation For?": Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996); Robert H. Mnoonkin, Why; Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 OHIO ST. J. ON DISP. RESOL. 235 (1993).
67. See infra text accompanying notes 128-31.
68. See NANCY H. ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY, PRACTICE §§ 7:01-07 (2d ed. 1994).
69. See Kimberlee K. Kovach, Good Faith in Mediation - Requested, Recommended, or Required?, 38 S. TEX. L. REV. 575 (1997); Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should be Required?, 46 SMU L. REV. 2079 (1993); Richard D. English, Annotation, Alternative Dispute Resolution: Sanctions for Failure to Participate in Good Faith in, or Comply with Agreement Made in, Mediation, 43 A.L.R. 5th 545 (1996).
70. See Kimberlee K. Kovach, Good Faith in Mediation - Requested, Recommended, or Required?, 38 S. TEX. L. REV. 575 (1997); Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should be Required?, 46 SMU L. REV. 2079 (1993); Richard D. English, Annotation, Alternative Dispute Resolution: Sanctions for Failure to Participate in Good Faith in, or Comply with Agreement Made in, Mediation, 43 A.L.R. 5th 545 (1996).
71. See Kimberlee K. Kovach, Good Faith in Mediation - Requested, Recommended, or Required?, 38 S. TEX. L. REV. 575 (1997); Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should be Required?, 46 SMU L. REV. 2079 (1993); Richard D. English, Annotation, Alternative Dispute Resolution: Sanctions for Failure to Participate in Good Faith in, or Comply with Agreement Made in, Mediation, 43 A.L.R. 5th 545 (1996).
72. See supra text accompanying notes 41-46.
73. Some authors refer to this as the lawyer's advocacy role in mediation. See, e.g., JOHN W. COOLEY, MEDIATION ADVOCACY (1996); Michael Lewis, Advocacy in Mediation: One Mediator's View, DISP. RESOL. MAG., Fall 1995, at 7.
74. Some authors refer to this as the lawyer's advocacy role in mediation. See, e.g., JOHN W. COOLEY, MEDIATION ADVOCACY (1996); Michael Lewis, Advocacy in Mediation: One Mediator's View, DISP. RESOL. MAG., Fall 1995, at 7.
75. This exclusion has been the subject of considerable criticism. See, e.g., Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991).
76. This exclusion has been the subject of considerable criticism. See, e.g., Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991).
77. Critics of divorce mediation in particular have urged more attorney participation and the current trend is toward attorney involvement. See Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995).
78. See, e.g., McKinley v. McKinley, 648 So. 2d 806 (Fla. Dist. Ct. App. 1995) (claiming that attorney badgered and intimidated a party during a mediation).
79. See ABA STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES, adopted by the House of Delegates of the American Bar Association, August 1984, reprinted in GOLDBERG ET AL., supra note 21, at 469.
80. The codes generally provide that parties be allowed to consult with their attorney before signing a mediation agreement. E.g., id.; FLA. FAM. LAW RULES PROC. § 12.740(f)(1) (1997).
81. The Rules are equally silent on the role of the lawyer-mediator. The Model Rules refer to an intermediary function which has been equated with common representation. MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.2 (1995) [hereinafter MODEL RULES].
82. Id. Rule 1.2(a).
83. Id. Rule 1.2; see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7 (1980). See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 4.3, at 156-57 (1986).
84. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
85. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
86. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
87. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
88. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
89. Roger W. Andersen, Informed Decisionmaking in an Office Practice, 28 B.C. L. REV. 225 (1987); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987).
90. E.g., GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: MATERIALS FOR CLINICAL INSTRUCTION IN ADVOCACY 124-272 (1978); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH 185-86 (1977); DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH (1991).
91. E.g., GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: MATERIALS FOR CLINICAL INSTRUCTION IN ADVOCACY 124-272 (1978); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH 185-86 (1977); DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH (1991).
92. E.g., GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: MATERIALS FOR CLINICAL INSTRUCTION IN ADVOCACY 124-272 (1978); DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH 185-86 (1977); DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH (1991).
93. See, e.g., Dinnerstein, supra note 44 and sources cited therein. More recently, some scholars have rejected the paternalism/participation dichotomy and argued instead for lawyer-client relationships based on other values. E.g., SHAFFER & COCHRAN, supra note 23, at 40-49 (friendship); Paul J. Zwier & Ann B. Hamric, The Ethics of Care and Reimagining the Lawyer/Client Relationship, 22 J. CONTEMP. L. 383, n.5 (1996) (ethics of care).
94. Glendon's critique of lawyering focuses on large firm practice.
95. E.g., Stephen Ellmann, Lawyers and Clients, 34 UCLA L. REV. 717 (1987).
96. See, e.g., David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454. Beyond the theoretical debate about paternalism, the problem of lawyer manipulation of clients still remains. See Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1306 n.361 (1994).
97. See, e.g., David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454. Beyond the theoretical debate about paternalism, the problem of lawyer manipulation of clients still remains. See Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1306 n.361 (1994).
98. See, e.g., Ann Southworth, Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101, 1106 n.14 (1996).
99. For a description of the types of decisions which lawyers and clients must con-sider, see infra text accompanying notes 127-31.
100. Glendon describes those ideals in part as the belief "that lawyers can often serve their clients best by discouraging litigation, or by deliberating with them about a proposed course of action, rather than by unquestioningly carrying out the client's desires." GLENDON, supra note 2, at 35-36.
101. I refer here primarily to dispute negotiations. See generally Leonard L. Riskin, The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. v. Joseph Oat Corp., 69 WASH. U. L.Q. 1059 (1991).
102. See, e.g., Gerald R. Williams, Negotiation as a Healing Process, 1996 J. DISP. RESOL. 1, 24. More recent negotiation scholarship on lawyering has focused both on the dynamics of the lawyer as negotiating agent for the client and on negotiating the termsof the attorney-client relationship. See, e.g., William L.F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447 (1992); Alex J. Murder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996)
103. See, e.g., Gerald R. Williams, Negotiation as a Healing Process, 1996 J. DISP. RESOL. 1, 24. More recent negotiation scholarship on lawyering has focused both on the dynamics of the lawyer as negotiating agent for the client and on negotiating the termsof the attorney-client relationship. See, e.g., William L.F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447 (1992); Alex J. Murder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996)
104. See, e.g., Gerald R. Williams, Negotiation as a Healing Process, 1996 J. DISP. RESOL. 1, 24. More recent negotiation scholarship on lawyering has focused both on the dynamics of the lawyer as negotiating agent for the client and on negotiating the termsof the attorney-client relationship. See, e.g., William L.F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447 (1992); Alex J. Murder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996)
105. See John B. Bates, Jr., Using Mediation To Win For Your Client, PRAC. LAW., Mar. 1992, at 23; Stephen Patrick Doyle, Trial Lawyers Should Add Skilled Participation in Mediation to Services They Provide to Clients, BNA ADR Rep., Sept. 27, 1990, at 325; James D. Knotter, Settling the Entrenched Case Through the Mediation Process, 49 DISP. RESOL. J. 23 (1994); Chris Martin, Representing A Client in Mediation, COMPLEAT LAW., Fall 1996, at 34.
106. See John B. Bates, Jr., Using Mediation To Win For Your Client, PRAC. LAW., Mar. 1992, at 23; Stephen Patrick Doyle, Trial Lawyers Should Add Skilled Participation in Mediation to Services They Provide to Clients, BNA ADR Rep., Sept. 27, 1990, at 325; James D. Knotter, Settling the Entrenched Case Through the Mediation Process, 49 DISP. RESOL. J. 23 (1994); Chris Martin, Representing A Client in Mediation, COMPLEAT LAW., Fall 1996, at 34.
107. See John B. Bates, Jr., Using Mediation To Win For Your Client, PRAC. LAW., Mar. 1992, at 23; Stephen Patrick Doyle, Trial Lawyers Should Add Skilled Participation in Mediation to Services They Provide to Clients, BNA ADR Rep., Sept. 27, 1990, at 325; James D. Knotter, Settling the Entrenched Case Through the Mediation Process, 49 DISP. RESOL. J. 23 (1994); Chris Martin, Representing A Client in Mediation, COMPLEAT LAW., Fall 1996, at 34.
108. See John B. Bates, Jr., Using Mediation To Win For Your Client, PRAC. LAW., Mar. 1992, at 23; Stephen Patrick Doyle, Trial Lawyers Should Add Skilled Participation in Mediation to Services They Provide to Clients, BNA ADR Rep., Sept. 27, 1990, at 325; James D. Knotter, Settling the Entrenched Case Through the Mediation Process, 49 DISP. RESOL. J. 23 (1994); Chris Martin, Representing A Client in Mediation, COMPLEAT LAW., Fall 1996, at 34.
109. E.g., Milton Heumann & Jonathan M. Hyman, Negotiation Methods and Litigation Settlement Methods in New Jersey: "You Can't Always Get What You Want", 12 OHIO ST. J. DISP. RESOL. 253 (1997).
110. See, e.g., Kaiser Found. Health Plan of the Northwest v. Jane Doe, 903 P.2d 375 (Or. Ct. App. 1995). However, there are some hopeful reports of lawyers' behavior in mediation. See, e.g., McEwen, supra note 56; Riskin, supra note 72, at 1061.
111. See, e.g., Penelope Eileen Bryan, Reclaiming Professionalism: The Lawyer's Role in Divorce Mediation, 28 FAM. L.Q. 177 (1994).
112. See, e.g., Mark C. Rutherford, Lawyers and Divorce Mediation: Designing the Role of "Outside Counsel", MEDIATION Q., June 1986, at 17, 26-27.
113. This situation should change as scholars and practitioners begin to focus on representational mediation practice. See, e.g., EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIV DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 245-53 (1997); COOLEY, supra note 54; ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 75-80 (1994); GOLDBERG ET AL., supra note 21, at 445-49; JOHN S. MURRAY ET AL., PROCESSES OF DISPURE RESOLUTION: THE ROLE OF LAWYERS (2d ed. 1996); LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 436-442 (2d ed. 1997); ROGERS & MCEWEN, supra note 51, at § 4:11; David Plimpton, Mediation of Disputes: The Role of the Lawyer and How Best to Serve the Client's Interest, 8 ME. B.J. 38, 45 (1993); see also supra note 49.
114. This situation should change as scholars and practitioners begin to focus on representational mediation practice. See, e.g., EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIV DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 245-53 (1997); COOLEY, supra note 54; ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 75-80 (1994); GOLDBERG ET AL., supra note 21, at 445-49; JOHN S. MURRAY ET AL., PROCESSES OF DISPURE RESOLUTION: THE ROLE OF LAWYERS (2d ed. 1996); LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 436-442 (2d ed. 1997); ROGERS & MCEWEN, supra note 51, at § 4:11; David Plimpton, Mediation of Disputes: The Role of the Lawyer and How Best to Serve the Client's Interest, 8 ME. B.J. 38, 45 (1993); see also supra note 49.
115. This situation should change as scholars and practitioners begin to focus on representational mediation practice. See, e.g., EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIV DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 245-53 (1997); COOLEY, supra note 54; ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 75-80 (1994); GOLDBERG ET AL., supra note 21, at 445-49; JOHN S. MURRAY ET AL., PROCESSES OF DISPURE RESOLUTION: THE ROLE OF LAWYERS (2d ed. 1996); LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 436-442 (2d ed. 1997); ROGERS & MCEWEN, supra note 51, at § 4:11; David Plimpton, Mediation of Disputes: The Role of the Lawyer and How Best to Serve the Client's Interest, 8 ME. B.J. 38, 45 (1993); see also supra note 49.
116. This situation should change as scholars and practitioners begin to focus on representational mediation practice. See, e.g., EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIV DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 245-53 (1997); COOLEY, supra note 54; ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 75-80 (1994); GOLDBERG ET AL., supra note 21, at 445-49; JOHN S. MURRAY ET AL., PROCESSES OF DISPURE RESOLUTION: THE ROLE OF LAWYERS (2d ed. 1996); LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 436-442 (2d ed. 1997); ROGERS & MCEWEN, supra note 51, at § 4:11; David Plimpton, Mediation of Disputes: The Role of the Lawyer and How Best to Serve the Client's Interest, 8 ME. B.J. 38, 45 (1993); see also supra note 49.
117. This situation should change as scholars and practitioners begin to focus on representational mediation practice. See, e.g., EDWARD BRUNET & CHARLES B. CRAVER, ALTERNATIV DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 245-53 (1997); COOLEY, supra note 54; ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 75-80 (1994); GOLDBERG ET AL., supra note 21, at 445-49; JOHN S. MURRAY ET AL., PROCESSES OF DISPURE RESOLUTION: THE ROLE OF LAWYERS (2d ed. 1996); LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 436-442 (2d ed. 1997); ROGERS & MCEWEN, supra note 51, at § 4:11; David Plimpton, Mediation of Disputes: The Role of the Lawyer and How Best to Serve the Client's Interest, 8 ME. B.J. 38, 45 (1993); see also supra note 49.
118. See, e.g., Charles Guittard, Preparing for Mediation and Negotiation, PRAG. LAW., Oct. 1991, at 65 ("Your client needs you to participate in mediation because he wants your advice as if it were an invisible suit of armor."). However, some critics may prefer to have a lawyer be a combatant; see, e.g., Bryan, supra note 77.
119. E.g., Heumann & Hyman, supra note 75.
120. E.g., id.
121. See Kaiser Found. Health Plan of the Northwest v. Jane Doe, 903 P.2d 375 (Or. App. 1995) (alleging failure to inform client of arbitration provision in mediation settlement agreement).
122. E.g., McEnany v. West Del. County Community Sch. Dist., 844 F. Supp. 523 (N.D. Iowa 1994) (finding that even if an attorney threatened to withdraw if the party did not settle as the party claimed, it occured after the mediation).
123. See In re Waller, 573 A.2d 780 (D.C. App. Ct. 1990).
124. Bernard v. Galen Group, Inc., 901 F. Supp. 778 (S.D.N.Y. 1995).
125. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
126. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
127. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
128. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
129. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
130. Commentators have called for deliberation in various aspects of the attorneyclient relationship. See, e.g., Kronman, supra note 4; Anthony V. Alfieri, Defending Racial Violence, 95 COLUM. L. REV. 1301 (1995); Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990); Tanina Rostain, The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21 LAW & Soc. INQUIRY 1017 (1996) (book review).
131. This should have a carryover effect into mediation so that parties are better able to experience what Lon Fuller has referred to as the central quality of mediation - its "capacity to reorient the parties toward each other." Fuller, supra note 16, at 325.
132. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 527 (2d ed. 1987); OXFORD ENCYCLOPEDIC ENGLISH DICTIONARY 381 (1991). See also James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 32 n.176 (1995). Deliberation does not occur in every situation but only in those cases where there may be doubt or differences of opinion. Aristotle identifies spelling as an example of activity about which people do not deliberate. See ARISTOTLE, THE NICHOMACHEAN ETHICS, Book III, 85 (J.A.K. Thomson trans., Penguin Books 1971).
133. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 527 (2d ed. 1987); OXFORD ENCYCLOPEDIC ENGLISH DICTIONARY 381 (1991). See also James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 32 n.176 (1995). Deliberation does not occur in every situation but only in those cases where there may be doubt or differences of opinion. Aristotle identifies spelling as an example of activity about which people do not deliberate. See ARISTOTLE, THE NICHOMACHEAN ETHICS, Book III, 85 (J.A.K. Thomson trans., Penguin Books 1971).
134. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 527 (2d ed. 1987); OXFORD ENCYCLOPEDIC ENGLISH DICTIONARY 381 (1991). See also James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 32 n.176 (1995). Deliberation does not occur in every situation but only in those cases where there may be doubt or differences of opinion. Aristotle identifies spelling as an example of activity about which people do not deliberate. See ARISTOTLE, THE NICHOMACHEAN ETHICS, Book III, 85 (J.A.K. Thomson trans., Penguin Books 1971).
135. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 527 (2d ed. 1987); OXFORD ENCYCLOPEDIC ENGLISH DICTIONARY 381 (1991). See also James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 32 n.176 (1995). Deliberation does not occur in every situation but only in those cases where there may be doubt or differences of opinion. Aristotle identifies spelling as an example of activity about which people do not deliberate. See ARISTOTLE, THE NICHOMACHEAN ETHICS, Book III, 85 (J.A.K. Thomson trans., Penguin Books 1971).
136. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
137. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
138. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
139. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
140. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
141. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988). Calls also resound for greater involvement in deliberative decisionmaking in a wide variety of settings including the courts and the government. See, e.g, AMY GUTMAN, DEMOCRATIC EDUCATION 50-52 (1987); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 229 (1996); Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991). But see Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309 (1997).
142. In the political sphere, deliberation is endorsed by civic republicans as an optimal decisionmaking process. See, e.g., Frank Michelman, Law's Republic,
143. GLENDON, supra note 6, at 179.
144. See supra text accompanying notes 61-69.
145. GLENDON, supra note 6, at 179.
146. See BINDER & PRICE, supra note 64, at 52-68.
147. Joan L. O'Sullivan et al., Ethical Decisionmaking and Ethics Instruction in Clinical Law Practice, 3 CLINICAL L. REV. 109, 133 (1996).
148. The inclusion of non-legal interests in client counseling has also been advocated by other commentators. See, e.g., BINDER & PRICE, supra note 64, at 8-9. Professor Peter Margulies has proposed a specific rule of professional responsibility that would require lawyers to deliberate with their clients regarding both the interests of third-party non-clients and the moral, policy, and psychological consequences of legal action. See Margulies, supra note 87.
149. This is equally true in the litigation context. See O'Sullivan et al., supra note 95, at 139.
150. See Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1600 (1995).
151. See BINDER & PRICE, supra note 64, at 272 n.36.
152. While this point should be self-evident and is frequently true with respect to elite clients, it has not been the case with poor clients. See, e.g., Clark D. Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298 (1992).
153. This is not necessarily happening right now. See, e.g., Roy M. Sobelson, Lawyers, Clients and Assurances of Confidentiality: Lawyers Talking Without Speaking, Clients Hearing Without Listening, 1 GEO. J. LEGAL ETHICS 703, 704 (1988).
154. The traditional conception of lawyer professionalism did not include any significant client participation or control over the outcome of disputes. See William Rich, The Role of Lawyers: Beyond Advocacy, 1980 BYU L. REV. 767, 783.
155. See Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1371 (1997).
156. Cf. Pepper, supra note 98, at 1546-47. Certainly all clients should have this knowledge. However, mediation clients in particular require knowledge of the law because they may play a more active role speaking for themselves in the mediation process.
157. See Edmund D. Pellegrino, Trust and Distrust in Professional Ethics, in ETHICS, TRUST, AND THE PROFESSIONS 69-85 (1991).
158. See, e.g., Gilson & Mnookin, supra note 3, at 564; Williams, supra note 73.
159. See JAY FOLBERG & ALISON TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT LITIGATION 38 (1984).
160. ANTHONY GIDDENS, BEYOND LEFT AND RIGHT 14 (1994). Sissela Bok develops Giddens' thinking in bioethics, arguing that professionals must "win back the active trust that they no longer can count on receiving automatically." Sissela Bok, Shading the Truth in Seeking Informed Consent for Research Purposes, 5 KENNEDY INST. ETHICS J. 1, 11-12 (1995).
161. ANTHONY GIDDENS, BEYOND LEFT AND RIGHT 14 (1994). Sissela Bok develops Giddens' thinking in bioethics, arguing that professionals must "win back the active trust that they no longer can count on receiving automatically." Sissela Bok, Shading the Truth in Seeking Informed Consent for Research Purposes, 5 KENNEDY INST. ETHICS J. 1, 11-12 (1995).
162. Sadly, lack of trust is too often characteristic of the relationship between lawyers and their clients. See Robert A. Burt, Conflict and Trust Between Attorney and Client, 69 GEO. L.J. 1015 (1981).
163. See Williams, supra note 73, at 62; Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 527.
164. See Pellegrino, supra note 105, at 73.
165. As Sissila Bok has observed, "[I] t is far harder to regain trust, once lost, than to squander it in the first place." Bok, supra note 108, at 11.
166. Several commentators have urged client counseling of non-legal interests. See, e.g., BINDER & PRICE, supra note 64; Margulies, supra note 87 and sources cited therein; Pepper, supra note 98, at 1602-04. See also MODEL RULES, supra note 60, Rule 2.1 & cmt.
167. In this respect, integration shares similarities with the contextual reasoning advocated by some feminist thinkers. See, e.g., Phyllis Goldfarb, A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education, 75 MINN. L. REV. 1599, 1636-42 (1991).
168. See, e.g., Austin Sarat & William L.F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 YALE L.J. 1663, 1671-87 (1989).
169. See BINDER & PRICE, supra note 64, at 22.
170. For an example of this approach in an administrative law context, see Jamie Heller's argument for "full-picture counseling": Jamie G. Heller, Legal Counseling in the Administrative State: How to Let the Client Decide, 103 YALE L.J. 2503 (1994).
171. See Peter H. Rehm & Denise R. Beatty, Legal Consequences of Apologizing, 1996 J. DISP. RESOL. 115. For a discussion of possible conditions for the effectiveness of apology in mediation, see Deborah L. Levi, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165 (1997).
172. See Peter H. Rehm & Denise R. Beatty, Legal Consequences of Apologizing, 1996 J. DISP. RESOL. 115. For a discussion of possible conditions for the effectiveness of apology in mediation, see Deborah L. Levi, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165 (1997).
173. See Pepper, supra note 98, at 1601.
174. GLENDON, supra note 2, at 36.
175. Id. at 36.
176. In mediation counseling, a lawyer's opinion may make a difference in whether parties use the mediation process. See, e.g., Pearson et al., The Decision to Mediate: Profiles of Individuals Who Accept and Reject the Opportunity to Mediate Contested Child Custody and Visitations Issues, J. DIVORCE Fall/Winter 1982, at 17, 29.
177. See GLENDON, supra note 2, at 102-03.
178. For an excellent discussion of the advantages of mediation over bilateral negotiation between lawyers, or over other forms of alternative dispute resolution, see ROGERS & MCEWEN, supra note 51, §§ 4:04-06.
179. See infra text accompanying note 135.
180. Different considerations may apply when a client is required to mediate. See supra note 52 and sources cited therein.
181. In the non-mediation counseling context, there is little data on the kinds of decisions lawyers typically examine with their clients. See BINDER & PRICE, supra note 64, at 268 n.30.
182. See supra note 36 and sources cited therein.
183. Lawyers who are repeat players are often in a better position than clients to select mediators. See Lande, supra note 25, at 847.
184. Depending upon the degree of participation clients choose, lawyers may prepare clients to negotiate for themselves in the mediation session. This may involve taking on the role of coaching or active consulting. While lawyers cannot predict the outcome of negotiated mediations for clients, they can prepare clients by teaching them about the stages of negotiation and strategies. See Williams, supra note 74, at 34.
185. See generally MURRAY ET AL., supra note 79, at 370-71; ROGERS & MCEWEN, supra note 51, § 4:08; Cf. Gilson & Mnookin, supra note 3, at 556; Susan W. Harrell, Why Attorneys Attend Mediation Sessions, 12 MEDIATION Q. 369 (1995). But see Lande, supra note 25.
186. A discussion of the ethical issues confronting lawyers in representational mediation practice is beyond the scope of this article. See generally Feldman, supra note 87.
187. See, e.g., Mori Irvine, Serving Two Masters: The Obligation Under the Rules of Professional Conduct to Report Attorney Misconduct in a Confidential Mediation, 26 RUTGERS L.J. 155 (1994).
188. On the other hand, there has been some analysis of the ethical issues confronting mediators. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, 1994 J. DISP. RES. 1; Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. U. L. REV. 701 (1994).
189. On the other hand, there has been some analysis of the ethical issues confronting mediators. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, 1994 J. DISP. RES. 1; Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. U. L. REV. 701 (1994).
190. Mediation client counseling differs from traditional negotiation client counseling where lawyers, not clients, will be the primary participants in the negotiation. In helping clients to deliberate in pre-mediation counseling sessions, lawyers are really preparing their clients for future deliberations in mediation.
191. I realize that some clients may prefer to waive the right to participate significantly in decisionmaking. Cf. Elysa Gordan, Note, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waiver, 23 FORDHAM URB. L.J. 1321 (1996).