Legal Culture: Its Impact on Mediation

One of the most interesting parts of my job as a mediator is the opportunity to connect with an endlessly diverse clientele - it’s also one of the most challenging. Trying to grapple with the details of a dispute while recognizing how each participant’s complex cultural influences may be impacting the mediation is a task no mediator should take lightly.

Many of us connect culture with factors such as ethnicity, age, language, religion and gender. But, culture encompasses far more, including education, work/profession, health and ability/disability.

I was recently inspired by authors Michelle LeBaron and Zena Zumeta, who in their article titled Windows on Diversity: Lawyers, Culture and Mediation Practice, describe culture broadly and brilliantly: “Culture is what everyone in a group knows that those outside the group do not know.”

Given this description, how does culture and this notion of ‘inside knowledge’ impact the practice of mediation?

LeBaron and Zumeta discuss one culture, in particular, that greatly impacts mediation: legal culture. This is a culture of vast ‘inside knowledge’, teeming with specialized language, customs and processes. Not surprisingly, three major aspects of mediation are often influenced by legal culture – language, process, and outcomes. While these influences may be positive or negative, it is important to recognize their presence and be able to adapt to them.

Language

Generally, in court-connected mediations, the terms used in legal proceedings are also referenced in mediation. Parties are referred to as ‘plaintiffs’ or ‘claimants’ and ‘defendants’ or ‘respondents’; to describe each party’s point of view, we talk about ‘claims’ and ‘defences’. We use terms like ‘without prejudice’ and ‘liability’. While these terms may help participants understand their roles, the process, and the impact of settlement, they may also alter the way parties perceive themselves and the dispute.

For example, consider how a defendant with little or no knowledge of legal culture may perceive the title ‘defendant’. The word itself can seem intimidating – as if you are a wrongdoer that must defend yourself.

In any dispute, each party sees themselves in the right, with the other side in the wrong. Simply by labeling your opponent a defendant you affirm your own perception of being legally wronged.  It’s important for a mediator to recognize and respond to these perceptions.

Process

Many mediators take process cues from legal cultural norms. One common manifestation of this in court-connected mediation is beginning the mediation by hearing first from the plaintiff or claimant. While there is nothing wrong with this practice, it is important to recognize that relying on legal norms to guide the mediation process can limit the success of mediation. It could be that in some cases, hearing from the defendant or respondent first may help diffuse a power imbalance or reduce tension, thus contributing to a more productive session. However, because legal culture can play such a dominant role in mediation process, we may fail to consider adapting the process to suit the particular case.

Another major legal cultural impact on the mediation process is the degree of resistance to sharing information. Bluffing, low-balling, and the tendency to withhold sensitive information, are all aspects of legal culture that could be detrimental to reaching a satisfying outcome, and may impair the caliber of communication at the mediation table. As the guardian of the process, it is up to the mediator to be cognizant of these cultural impacts and craft a process that encourages information sharing and openness.

Outcomes

I often say to mediation participants that nothing is ‘off the table’ when considering settlement options – that mediation offers unlimited possible outcomes limited only by the creativity of the parties. In practice, however, settlement discussions can often come down to money. For example, in personal injury mediation, apart from liability, the paramount question is determining a monetary value for the injuries suffered.

Because litigation settlements frequently involve financial exchanges, legal advisors (and their clients) often come to the mediation table conditioned to seek a financial solution even where underlying party needs cry out for more. While the mediator may promote the boundlessness of options, if the parties confine their thinking to a financial settlement, they may be limited in their ability to consider other options. In this way, the presence of legal culture risks limiting creativity and the consideration of settlement options that may satisfy non-monetary needs.

Look Beyond Legal Culture

LeBaron and Zumeta argue that cultural awareness, particularly of legal culture, must be heightened in order for mediation to live up to the ideals of inclusivity, creativity and collaboration. And, while it may be comfortable to rely on legal culture’s ‘inside knowledge’ to guide your mediation practice, these comforts can come at the cost of restricted creativity and outcomes that fall short of addressing the cultural differences and underlying interests of the parties.

As mediators, to continue to evolve as professionals and achieve client-centred outcomes, we need to remain vigilantly aware of the expansive mosaic of cultural influences that disputants of all kinds bring to the table, not just those defined by legal culture.