August 2003
Some Do's and Don'ts of Mediation Advocacy
by Mori Irvine
Mediation is a powerful tool that is deeply integrated into the civil justice system. It is a rare case that does not have at least one brush with mediation during its life cycle. Whether that encounter is court-ordered, court-annexed, or voluntary, sooner or later most cases will find their way to the mediation table. This means that all lawyers engaged in civil practice need to be fully prepared to represent their clients in this alternative forum. Unfortunately, our adversary system has produced many attorneys who are ill equipped for the mediation arena. Because of their lack of preparedness, or antipathy to anything other than litigation, some lawyers actually impede the settlement process. As attorneys better understand mediation, they can appreciate what it has to offer and learn to maximize its use. This will result in more settlements that are crafted to satisfy more of the parties' interests.
While much has been written about mediation, little attention has been given to how attorneys should adapt their skills to work in this environment. Most attorneys are well trained in combative, adversarial techniques that are fine for the courtroom, but they lack the skills to excel in the mediation session.
At our court, we have tried to educate and assist counsel in this process. When a case on appeal has been selected and scheduled for mediation, we send a notice to all counsel for the parties, advising them of this fact. A seven-page document called "Mediation and Guidelines for Effective Mediation Representation" accompanies this notice. The guidelines give counsel an excellent snapshot of mediation and provide helpful suggestions to make the process productive. The two most crucial elements addressed in the guidelines are the "confidential mediation statement" and the attorney's role as an advocate in the mediation conference.
At our court, the confidential mediation statement is prepared for the mediator's eyes only. Because it is one of the most important documents generated in the mediation, attorneys should take the time to craft it well. More than almost anything else, this statement helps the mediator understand the important issues in dispute from the parties' points of view and obtain an idea of their interests. The statement also provides the mediator with a starting point in the process of trying
to facilitate resolution of the parties' problem.
The guidelines offer detailed suggestions about what the attorneys should cover in a mediation statement. The suggestions include a brief recitation of the circumstances that gave rise to the litigation, the present posture of the case (for example, are any related matters pending in other courts?), and any recent developments that may have an impact on the resolution of the case. They also suggest that the attorneys summarize their clients' legal positions and candidly assess their respective strengths and weaknesses, highlighting any sensitive issues that may not be apparent from the pleadings or other filings that could influence settlement negotiations. The guidelines also suggest that the attorneys prioritize their clients' interests and suggest possible solutions.
Because the mediation statement is considered to be confidential, it is not shared with the other side and does not become part of the court's file. The purpose of this confidentiality is to allow the parties and their attorneys to be very candid with the mediator.
Some counsel take shortcuts for a scheduled mediation. Instead of preparing the recommended mediation statement, they send copies of the pleadings. This is a mistake. It shows a lack of understanding about mediation, and it is not helpful to the mediator, who wants to help the parties solve their problem, not rule on the case.
Tips for Advocates
The attorneys are pivotal to the mediation. Their work as advocates is what makes the mediation productive. Every attorney has a different approach and needs to act in a way that best serves the client's interests. The guidelines our court prepared outline some recommendations for counsel when acting as an advocate in a mediation environment. These recommendations can help attorneys maximize the full potential of mediation and help achieve their clients' goals. Here are some of the more important recommendations.
Be Professional
Attorneys can reap substantial benefits for their clients when they act with courtesy and professionalism and are willing to work with the other side to reach a mediated solution.
• Do be on time and listen respectfully. The Golden Rule applies in mediation.
• Don't flip through your file, read the paper, or look at your calendar.
Use Temperate Language
A lawyer should never engage in name-calling (you're a fraud, liar, etc.), or insult or threaten anyone. The use of pejorative and intemperate language can only alienate the other side and ultimately chill settlement talks.
• Do choose words that warm your opponent to you. Use motivating language that accentuates the positive. You don't want to repel your adversary. You want to encourage behavior in the adversary that will lead to cooperation.
• Don't give in to the temptation of lambasting your adversary.
Listen Carefully
There is nothing more important in mediation than listening. Certainly, the mediator must listen to the lawyers and the parties. In mediation, the lawyers must listen to their clients, to their adversaries, and to the mediator. Each lawyer must listen with the kind of attention that makes the person speaking feel he has been heard and seen. Active listening is essential.
• Do listen, seek to understand, then to be understood.
• Don't tune out—you might learn something helpful.
Know the Client's Interests
The advocates must know what the issues are in order to understand their clients' interests and needs. This is essential, to prepare the clients for the mediation and to engage in productive private caucuses with the mediator. An advocate who cannot do this might as well be absent.
• Do know your client's "Best Alternative to a Negotiated Agreement" (BATNA) and "Worst Alternative to a Negotiated Agreement" (WATNA). These should be realistic. Remember, if the WATNA is highly likely (for example, a court's low reverse rate makes reversal a slim hope), then even a slightly better offer will be attractive.
• Don't come into the mediation unprepared or with unrealistic expectations.
Identify any Common Interests
Equally important is knowing the opponent's interests. Only in this way can common interests be identified. With common interests comes motivation, with motivation come concessions, with concessions come solutions, and with solutions comes settlement.
• Do be prepared to acknowledge the other party's interests, perspectives, and feelings.
• Don't overlook common ground like the parties' desire to get on with their lives, put the conflict behind them, save money, and feel respected.
Show off Your Preparedness
Mediators generally require a decision-maker with settlement authority to attend a mediation. This provides a rare opportunity for an advocate to display his or her skills and view of the case to the opponent's decision-maker. This opportunity should not be squandered.
• Do prepare rigorously for the mediation and submit a carefully crafted mediation statement.
• Don't wing it.
Know Your Case
Credibility requires equal parts honesty and knowledge. The lawyers must be prepared on both fronts. Cases settle only when each side appreciates the merits of the other side's case. The more merit, the more interest in settling. A fair resolution requires constant re-evaluation.
• Do discuss the weaknesses of your client's case openly and candidly with the mediator and the opposing side, and state how you can minimize them.
• Don't miss the opportunity to build credibility and trust by being candid.
Search for Common Solutions
Mediation and creative problem-solving go together. This is what business people look for. Lawsuits start as problems that clients bring to the lawyer to solve. Mediation is the venue in which those solutions can emerge.
• Do look outside the box. Be open to creative ideas.
• Don't focus only on the position you came to the table with.
Support Your Proposals
To give proposals more weight, the advocates should have independent, objective benchmark standards. Proposals that rely on a "gut feeling" or a client's wish list are more likely to sink.
• Do temper proposals with the reality of the situation—for example, you lost in the court below and are now in a less favorable position.
• Don't give in to the argument, "But I have much more invested now."
Let Everyone Win
Success in mediation depends on each side making a decision that the other party wants. The opponent will say "yes" more readily if you make the solution as painless as possible for her client.
• Do find a solution that satisfies at least some of the interests of the other side.
• Don't make it hard for the other side to say "yes" by insisting on impossible terms.
Conclusion
Mediation works best when the attorney keeps in mind that "a dispute is a problem to be solved together—not a combat to be won." No matter how skilled the mediator, the mediation is only as good as the parties and attorneys let it be. The clients must be prepared to put the dispute behind them, and the lawyers must be prepared to help their clients solve the problem. The mediator is only part of the solution. Well-prepared lawyers are what make mediation work. The successful mediation starts with a lawyer who has the correct attitude and brings the same creativity, energy, and dedication to this process as he does to his litigation duties. But instead of being the client's sword and shield, the lawyer must be his problem-solver and peacemaker.
WSBA member Mori Irvine is judicial division manager in the Staff Attorneys' Office at the U.S. Court of Appeals, 11th Circuit. Ms. Irvine served as circuit mediator for this court from 1995-2002. The views expressed in this article are solely those of the author and do not necessarily reflect the views of the 11th Circuit or any unit of the court, including the Staff Attorneys' Office, or the Kinnard Mediation Center.
Ms. Irvine can be contacted at Mori_Irvine@CA11.uscourts.gov. This article is reprinted from the Dispute Resolution Journal, Vol. 58, No. 1, Feb.-April 2003, and published by the American Arbitration Association.
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