Originally from Dispute Resolution Journal

The effectiveness of mediation is so widely recognized, it is not surprising that some of its principles have taken root in the legal field and other areas. In this article, Edward Selig imparts important lessons derived from his own “mediative practice of law.” Using a case study, he shows how opposing lawyers and their clients applied some key principles and techniques of mediation to settle a dispute successfully without the services of a mediator. If you’re a disputant, how would you know if you could benefit from Selig’s cooperative style of dispute resolution? He outlines 11 conditions to help you decide.

In representing parties to a dispute, lawyers may incline toward either of two poles: the confrontational or the cooperative. Most lawyers mix these styles in varying proportions as the dynamics of particular cases may warrant, and there is no behavioral recipe for assuring effective representation of the client in all cases.

This article posits, however, that the best results for all parties may be obtained when opposing lawyers and their clients adopt and model a cooperative style in dealing with one another. In such cases, they may not merely settle the dispute (as most cases somehow do before trial), but settle it on terms that afford substantially greater benefits for each party than any of them, including the successful plaintiff or defendant, could ever have obtained by judicial decree. Thus the cooperative style may achieve the functional equivalent of mediation without having to retain an independent mediator. This conclusion grows out of the author’s own experience in the mediative practice of law, an example of which is discussed at length below.