Mediation Advocacy: The State of the Art
March 2003
Mediation has evolved over the past few years
as a powerful risk management tool. As mediation grows in popularity, it becomes
more likely that you or your firm will be involved at some point. It is important
to know what you're getting into from the onset. Learn what to look for when
selecting a mediator, how to prepare before mediation begins, and what to do
when you first show up.
by Jeff
Kichaven
Jeff Kichaven,
A Professional Corporation
Every year, there’s a new flu vaccine. That’s because every year, the virus
develops immunity to the vaccine that worked last year. And this year, the flu
will evolve again. And next year, the scientists will invent a vaccine that’s
even more effective. And this will continue, year after year.
So it is in mediation. Although we might disagree as to which side of the
aisle represents “virus” and which “vaccine,” we know that every year plaintiff
and defense counsel design new ways to use mediation to their clients’ advantage
and to neutralize each other’s latest strategies. Mediators adapt too.
To help promote the positive direction of this evolution, this article takes
a brief look at what’s different about effective mediation advocacy today as
compared to, say, 5 years ago, and suggests some ways for litigators to use
mediation as an even more powerful tool.
First Principles
The progressive evolution of mediation is not a series of random moves. It
can take place only if fully cognizant of, and respectful for, the role of the
lawyer. Lawyers are fiduciaries for their clients and owe their clients a duty
of undivided loyalty; this is their “First Principles.” They are duty-bound
to give clients zealous advocacy within the bounds of the law. As long as lawyers
represent clients, these obligations exist—in the mediation room every bit as
much as in the courtroom.
Isn’t mediation supposed to be different, though? Isn’t it supposed to be
more collaborative and less adversarial, unlike litigation? If mediation is
supposed to be different, though, how can lawyers be effective in that forum
when they must still adhere to the First Principles?
Fortunately, mediation has evolved in such a way that honors both imperatives.
The trick is to recognize that the First Principles are vindicated differently,
though no less completely, in mediation. Understanding this will help all parties
to use the mediation tool even more effectively to promote their interests.
The Problem That Mediation Is Uniquely Designed To Solve
Why don’t cases settle? There are a million reasons. But in the nearly 200
cases I mediate each year, one stands heads and shoulders above the rest: The
good advice that lawyers may be giving their clients is not getting through.
Mediation is uniquely designed to solve that problem. Here’s how.
Think of all the times people develop unrealistic expectations about their
cases. It happens all the time. Now let’s make it even more painful. Think of
all the times a person’s unrealistic expectations have been fostered, at least
in part, by their attorneys. That happens all the time, too.
Again, there are a million reasons why that happens. Some of those reasons
are legitimate and some, frankly, are not. For now, though, “why” doesn’t matter.
We need only acknowledge that it’s a common problem, and that cases can’t settle
until those unrealistic expectations are unwound.
This is where mediation enters. The commonality and severity of the “unrealistic
expectations” problem, and the fact of the lawyer’s frequent role in contributing
to those expectations, shows that this is an area where lawyers could use some
help. And there is no other forum better designed for lawyers to get that help
than mediation. The mediator is the person touching the legal system with whom
lawyers can feel most comfortable in confiding their client-relations problems,
knowing they will get the help they need in getting their good advice through
to their own clients—all in the clients’ best interests. Good mediators have
evolved to understanding that this is, in fact, the essence of the job.
The negotiation between the plaintiff and defense sides is important. But
let’s face it: both plaintiff and defense counsel are professional evaluators
of claims and defenses, and in most cases, both realize who’s playing with the
stronger hand. As mediation evolves, lawyers are coming to acknowledge, to each
other and the mediator, the likely range of possible settlements earlier and
earlier in the day. Then the hard work begins—getting these realities across
to the clients.
These realities of Mediation 2003 have important implications for how to
approach mediation consistent with the First Principles. Three are worth particular
mention:
- How to select a mediator
- How to prepare for the mediation
- What to do when you first show up in the mediator’s office
How To Select a Mediator
There seems to be an emerging consensus to “let the other side pick the mediator.”
This is not as dangerous a practice as it used to be because as the market for
mediation services has evolved, many cities have developed relatively small
groups of top-tier professional, full-time mediators whose names appear over
and over on most lawyers’ short lists. So the names proposed by both sides are
likely to be the same.
Nevertheless, mediators proposed by the other side need to be screened. Call
those mediators if you don’t know them. Make sure there’s some chemistry, some
rapport, so that both lawyers and their clients feel comfortable confiding in
that mediator and will be open to what he or she has to say.
The best mediators have evolved to understand that perhaps their most significant
skill is the ability to understand and facilitate better communication between
attorneys and their own clients. This is something attorneys need not be shy
about taking advantage of.
How To Prepare for Mediation
Each party to a mediation should send the mediator a brief a few days before
the mediation is to take place. You have only one chance to make a good first
impression, and first impressions matter. Especially if you have let the other
side pick the mediator, the brief is your first real opportunity to show the
mediator that you are well prepared. You want the mediator to trust that the
attorneys representing both sides are providing good advice, so that the mediator
can do the job that needs to be done—supporting this advice with comfort and
integrity. A good brief is a great way to inspire that trust.
Next, the respective attorneys should call the mediator. No matter how many
times the word “confidential” appears on your brief, there are still some things
about every conflict that will never be put in writing. Most particularly, lawyers
will almost never be candid in writing about challenges they face in their relationships
with their own clients. But mediators need to know about these challenges to
be most helpful in meeting them. So, all parties should talk to the mediator
on the phone before the mediation day.
Again, the best mediators have evolved to make these preliminary telephone
conversations part of their standard practice. Joint conference calls with both
sides serve many valuable purposes, but these private calls with each lawyer
are indispensable for making sure that the mediator is fully prepared to help
solve the problem that mediation is uniquely designed to solve.
If for some reason your mediator does not call you before the mediation day,
it is perfectly acceptable for you to call the mediator. Ask for your mediator’s
cell phone numbers and home numbers. Indeed, do whatever it takes, but make
sure that you make the connection.
In my experience, the two acid-test questions for mediators to raise during
these conversations are: (1) What are the challenges we face in the mediation,
and (2) What are your expectations of the mediator? Since every case is different,
the answers should be different for every mediation. Mediators are much more
likely to help you meet your challenges and fulfill your expectations if they
know in advance what they are. The overworked phrase is still true: Help us
help you.
What To Do When You First Show Up
The standard-issue mediation begins with the mediator walking into the reception
area to find all assembled, inviting everyone into a conference room, giving
an introductory spiel, and then inviting everyone in the room to speak their
piece in front of everyone else. This can be a dangerous approach. Too many
lawyers believe that their clients expect them to give fire-and-brimstone arguments
in those opening sessions. When lawyers indulge that belief, they generally
accomplish little more than reinflaming their clients’ passions about the events
that gave rise to the litigation in the first place. This makes mediations take
longer than they have to and reduces the chances of ever getting to a deal at
all.
Better practices have evolved. Upon arrival, the mediator should meet with
each attorney and their client privately. While the attorney may already know
the mediator, the client probably does not and may have questions for the mediator.
It is important for all parties to the litigation to get a chance to develop
some rapport with the mediator. If that rapport develops, the parties will almost
certainly want to let off a little steam privately to the mediator, and that’s
a good idea. Separated from the other side, this private venting provides no
opportunity to reignite the other side’s passions.
Next, counsel and the mediator should meet privately without their clients
being present. Here, the attorneys can discuss the possibility of reaching an
amicable settlement without having to prove a point. It also sets expectations—what
each party expects from the other—and confirms what advice has been given to
both parties by their respective counsel. This diminishes any incentive to give
an inflammatory opening statement. The first joint session that follows will
tend to be calmer, more conversational, and more productive. The rest of the
mediation is likely to follow suit.
Conclusion
Mediation can be a powerful tool for litigants, lawyers, and mediators to
put their heads together to accept the realities and limitations of litigation,
and to allow cases to settle where they should.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author’s employer or IRMI. This article does not purport
to provide legal, accounting, or other professional advice or opinion. If such advice
is needed, consult with your attorney, accountant, or other qualified adviser.