With the increasing reliance on alternative dispute resolution processes, the tendency is to search for just the right independent neutral resolver to assist the parties to achieve a solution to their problem. This is especially true with mediation. What is easily either forgotten or ignored is that the primary responsibility of the neutral is to assist parties in coming to resolution and not designing one for them. The parties must undertake this responsibility or rely on counsel.
In the case of legal representation in mediation, a full appreciation of the situation clearly indicates that the key element to success more likely than not will be counsel who in the first instance select the mediator. Litigators can no longer relax and abdicate to their clients the responsibility for a successful mediation. Lawyering skills for settlement in many situations will require more creativity than being adversarial. With settlements far out numbering cases litigated to conclusion, what does this mean for the lawyer representing a client in mediation?
As a mediator, some of my most successful outcomes have been those cases where the lawyers were proficient in mediation skills and techniques and were willing, able and knowledgeable in advocating for their clients. These have been cases where we spent a portion of the time in mediation session and then an appreciable time thereafter where the lawyers worked with their respective clients and then together to move the dispute to settlement. Such were instances where the actual mediation sessions themselves were followed by weeks and sometimes months of negotiations between the two sides loosely monitored by me as the mediator through e-mail and telephone, with the hard work being accomplished by counsel. This highlights the need for a new respect by counsel regarding the mediation process, realizing that they have a wonderful opportunity to practice an innovative area of lawyering skills: mediation advocacy.
The effective mediation advocate will: not pursue mediation to achieve free discovery but only if the possibilities for success are real; become trained in the skills and techniques of the process; take the time to fully prepare the client in the elements of the process, its use, and how to interact with the other side during the session; arrange for joint and separate
pre-mediation conferences with the mediator prior to the joint session; make sure that the mediator has a full hard copy of the confidential mediation statement that accurately describes the background, what is at issue and options for settlement well in advance of the mediation; have complete control over the lawyer-client relationship during the process in order to
make the most effective use of the opportunity; make sure that the client understands the mediator's function; ensure that the client fully listens to and understands the other side's point of view while completely expressing the client's own; work to make sure that the process is not adversarial but collaborative; and see to it that the process is fully concluded whether
positively or negatively.
When preparing clients, the effective mediation advocate will make sure that the represented party understands the difference between mediation and litigation as well as the roles of all who will participate in the process. The client will be instructed in how to appreciate the interests and underlying needs of the other side, rather than be locked into positions,
and the best way to convey what interests and underlying needs are important to the client. Alternatives to settlement should also be reviewed in detail while keeping in mind a realistic appraisal of the client's case vis-à-vis that of the other side. The best and worst alternatives to a negotiated agreement will be considered fully. The client needs to completely
understand when to "walk" and what "walking" will mean to his or her case.
The use of pre-mediation conferences in person or via telephone is extremely useful. The joint conferences can be most effective when those present are only the mediator and counsel for both sides. A great deal of time and attention should be devoted to how the mediator will conduct the joint session (i.e., facilitative, evaluative, facilitative/evaluative, or directive); and whether the parties will meet together with breaks for private meetings (caucuses) or completely in private with the mediator shuttling back-and-forth. The separate pre-mediation conferences between the mediator, counsel and client for one side are useful because each party will then get a preview of what can be accomplished and what may occur at the mediation.
When preparing the mediation statement, the effective mediation advocate will make sure to slant the document away from a litigator's adversarial argumentative approach designed to convince a judge why counsel's client should prevail. Instead, the direction will be one that thoroughly sets forth the history of the dispute, results of any prior settlement discussions or mediations, and presents the respective interests and underlying needs of the parties from this mediation advocate's perspective concerning how the entire matter can possibly be resolved. In this connection it will be important to provide an analysis of why prior attempts at settlement have not been successful.
The effective mediation advocate will make sure that all individuals required for final decision-making are properly educated and present for the mediation. Even though a more formal settlement document is contemplated for subsequent drafting and execution, the effective mediation advocate will see to it that at least an outline memorandum of understanding is fully executed and dated before the mediation is adjourned.
I have seen mediations fall out because the lawyers adopted the positional attitudes of their respective clients. Thus, the effective mediation advocate will refrain from wearing the partisan litigator's hat and continually strive to ensure that the mediation process stays on a collaborative track. This is where the law schools such as Loyola Law School of Los Angeles make a significant difference by recognizing the change in climate and placing as much emphasis on mediation advocacy as they do regarding trial practice.
A. Marco Turk is professor and director of the Negotiation, Conflict Resolution, and Peacebuilding Program at Cal State University Dominguez Hills, a mediator for the California Court of Appeal (2nd District), and a member of ARC. His column appears here on the first and third Fridays. He can be reached at email@example.com.