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Advocacy in Mediation: One Mediator’s View
Many attorneys fail to recognize that mediation can differ considerably from the typical lawyer-to-lawyer negotiations that often take place as a trial approaches. The failure to appreciate these differences can hinder reaching an agreement or result in a less-than-optimal agreement.
There are at least four reasons why mediation might be the process of choice in virtually any dispute: cost—mediation, if it results in agreement, is virtually guaranteed to be less costly than litigation; control—principals typically have a larger role in the actual negotiation than is true in most lawyer-assisted negotiations arising out of disputes; customized agreements—partially because clients can be heavily involved in the creation of agreements in mediation, the agreements can be tailored precisely; and confidentiality—mediation generally affords the parties the opportunity to construct a settlement that can be as private as desired. For disputes in which the parties might have a continuing relationship, one could also add the increased likelihood of cooperation in the future.
Preparation for mediation re-quires a discussion of the client’s needs and some discussion of what the needs of the other party to the dispute might be. The second part of the discussion is important because if the lawyer and client focus on the other side’s interest and goals, they may well be able to think through possible solutions to meet the opponent’s needs and their own as well.
In disputes involving institutions, much is made of the question of authority at the mediation table—that is, can the representative at the table commit the institution to an agreement. But authority is just one of the important attributes an institutional client should bring to a mediation. Others include enough knowledge to craft an optimal agreement and the ability to communicate with and understand the other side.
At the mediation session, the mediator quickly will try to elicit the information necessary to help the parties move toward an agreement. It is at this stage of the meditation that counsel plays a second pivotal role. Trial lawyers are accustomed to negotiating directly with opposing lawyers. They are less accustomed to having an opportunity to make a pitch to the principals on the other side. A critical early question for lawyer and client should be how to make the best possible presentation.
The tone of the opening presentation should strike a balance between interest in settlement and willingness to litigate. The presentation should set out a cohesive story or theme as economically and clearly as possible. Demon-strative evidence, such as videotapes, often is effective.
One important difference between most lawyer-to-lawyer negotiations and mediation is that clients are expected to take an active role. If clients are present during mediation sessions, most mediators expect them to offer their perspectives. Most mediators do not take well to efforts by an attorney to prevent the mediator from asking questions of the client, especially during sessions when the other side isn’t present. To help fashion an optimal agreement, the mediator needs to hear from the client what is most important to him or her.
Most mediators meet with parties in a combination of joint and separate meetings. It is important for lawyers to understand the differences between these sessions. The initial joint meeting provides the lawyer and client an opportunity to speak directly to the other principal(s) involved in the mediation. While few mediators would suggest the lawyer and client make a presentation that is so polished that it seems canned, failure to plan adequately for this session can result in missing a major opportunity to make a persuasive presentation to the principal(s) on the other side.
If the mediator intends to speak with the parties in separate sessions, it is important for advocates to make sure they understand the extent of the confidentiality to be offered by the mediator in those sessions. A good place to start is the jurisdiction’s statute (if there is one) on mediator confidentiality. If the mediation is taking place under the auspices of a court program, the advocate should review the confidentiality rules governing the program. Most mediators in private practice have developed agreements to mediate explicitly establishing the mediator’s offer of confidentiality to the parties. Some court programs, however, forbid mediators from using such agreements, so it is important for advocates to establish the scope of confidentiality protections applicable to their particular situation.
Once assured about confidentiality, the advocate should consider how best to use the mediator in the early stages of the mediation. The mediator is likely to be interested in any sensitive information that the client and advocate might not want to share with the other side. This information may be of two kinds: sensitive information about what happened in the transaction or dispute, and information regarding the client’s real needs or interests in the mediation. The advocate is likely to face a mediator who explores what the advocate and client have said in the joint sessions. From the mediator’s point of view, the exploration is designed to provide information that might be useful in helping the parties fashion an agreement. An advocate who attempts to thwart this exploration by, for example, interposing himself or herself between the mediator and the client runs the risk of missing an opportunity. The advocate who tries to use the mediator as an ally, on the other hand, will get the most out of the mediation.
How might the advocate use the mediator as an ally? First, the advocate and client may want to share sensitive information about the details of the dispute and possible acceptable outcomes. Second, the advocate and client should consider how they want to explore settlement possibilities with the other side. Obviously, the dilemma the advocate faces here is protecting the client against overreaching by the other side.
Given that most mediations involve a series of meetings with the mediator, it is important for advocates to use "down time," the time when the mediator is meeting with the other side, to consider any information the mediator may have conveyed that suggests new settlement possibilities. Thinking this through with the client may open the door for a settlement that better meets the interests of the client. If the information conveyed suggests that the other side is proceeding in a way likely to generate a series of unacceptable settlement possibilities, the sooner the mediator understands this the better.
Finally, given the fluid nature of many mediations, lawyer and client may be presented with settlement possibilities that they had not considered at the outset. The advocate should be careful not to reject these possibilities too quickly. It is not uncommon for clients to disclose new interests or change their priorities in the course of a mediation. A settlement that was once unthinkable to the client may become acceptable with the passage of time.
Toward the end of the mediation, the choice for the client may well be between a potential agreement meeting most of his or her interests or resolving the case through litigation. Only rarely will the client be offered what he or she wanted at the outset. If the advocate believes that one or more of the possible settlements meets all of the essential needs of the client, and that those needs are unlikely to be met at an acceptable cost through litigation, the mediator may be a useful ally in convincing the client to settle.
Michael Lewis is a lawyer-mediator and president of ADR Associates in Washington, D.C.
This article is an abridged and edited version of one that originally appeared in Dispute Resolution Magazine, Fall 1995 (2:3) .