September 11, 2018 Articles

The Difference Between Litigation Advocacy and Mediation Advocacy

By Edmund J. Sikorski Jr.

Litigators are highly focused on one thing—litigation. This includes document as well as electronic data review gleaned through both the investigative and litigation discovery process. The focus is on the development of answers to the question of what happened. The material must be sorted through and a liability theory developed.

Next comes garnering, developing, and marshaling evidence often including expert opinion and testimony to support or refute the liability theory. The focus of this material is on how it happened and why it happened.

Next, efforts are focused on how the relevant material can be presented to the target audience to achieve the desired reaction and outcome. The object is to convince the trier of fact of the righteousness of the client’s position.

In the process, evidentiary objections must be identified, anticipated, and if possible, overcome. Strict compliance with the rules of discovery, rules of evidence, and trial scheduling orders is strategically important because it will determine what the trier of fact will hear in reaching a decision.

In this combat environment, it is not uncommon and is very natural for hard-nosed positions to develop as the focus on a litigated conclusion to the conflict intensifies. Tensions, conflicts, and enmities may erupt that challenge the concept of civility.

The very nature of the process creates at least three cognitive impediments that directly affect the assessment of conflict resolution options and ranges of settlement value:

  1. Advocacy bias—spending too much time identifying one’s strengths but paying insufficient attention to one’s weaknesses.
  2. Cognitive dissonance—failing to consider data contradicting one’s viewpoint.
  3. Certainty bias—overestimating assessments of probable litigation outcomes.

The enthusiasm generated by this process can be contagious to the client and may be difficult to justify modifying at a later date without having the client raise questions that will cause counsel to cringe.

However, we know that 98 percent of all litigation will settle at some point before the terrifying words “Call the jury” are uttered. That fact proves that when someone else is about to impose a decision, the combatants suddenly become more willing to find an answer themselves.

It also means that at some point the risk-taking inherent to litigation probably will pause and serious consideration will be given to measuring the risks of trial against the benefits of attaining a resolution that may not be ideal but will meet the client’s needs.

This new case analysis demands a skill set that is dramatically different. It is called mediation advocacy. It can be thought of it in terms of the saying, “We do not ask generals to be diplomats or diplomats to be generals.”

For example, generals (litigation advocates) are not distracted from engagement by stopping to consider (mediation advocacy) how to make a principled first offer to end the conflict, and diplomats (mediation advocates) do not plan for the next assault to defeat and eliminate the opposition.

Mediation advocacy focuses on soliciting the cooperation of the opposing party by finding common ground instead of asserting positions. Success depends on the opposing party accepting the resolution sought. So taking an extreme position is unlikely to be successful.

The language chosen, the presentation made, and the approach must change from military tactics to diplomatic maneuvering. The goal changes to obtaining a mutually acceptable result regardless of the stated positions of the parties. Attention is centered on the elements of risk analysis and costs (monetarily as well as emotionally).

Mediation advocacy does not include telling the other side what you will do to beat them at trial. Never expect that adversarial approach to be persuasive. Likewise, an indelicate presentation of the strengths and weaknesses of the other side’s case may entrench that side in the overconfidence biases identified above. The best mediation advocacy consists of a calm and even-handed presentation of the arguments you expect to make in court, the documents you intend to introduce, summaries of any expert testimony, and the principled explanation of the relief sought and why it is reasonable. Hearing an adversary calmly state his or her case can often persuade the listener that the speaker’s case is stronger than the listener anticipated, thus reducing the listener’s level of confidence in his or her own success in court.

Mediation advocacy is simply the developed art of persuasion. The other side must be persuaded that it is in its best interests to settle the dispute on your suggested terms.

This skill set was first described by Aristotle 2,400 years ago:

Of the modes of persuasion furnished by the spoken word there are three kinds. The first depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof provided by the word of the speech itself.

First, the mediation advocate must have command of both the law and facts of the case from both sides of the table. While it is presumed that the applicable law will control, it may be surprising to find that the law relating to the subject may have little to do with the terms of dispute resolution because of the underlying interests of one or both disputants. Boisterous, bombastic denunciations will almost always backfire. Treating people with disrespect, even when their stories verge on the fanciful, is normally counterproductive.

Second, the decision makers on the other side will be the first jurors. They are the intended audience.

Appeal is made to the inherent human emotions along five general themes:

  1. Care or harm
  2. Fairness or cheating
  3. Loyalty or betrayal
  4. Authority or subversion
  5. Sanctity or degradation

Jonathan Haidt, The Righteous Mind (2012).

Every legal case will contain one or more of these themes. If employed in the mediation presentation, they will have the identical effect as in an opening statement to the jury.
Research by social scientists indicate that 60 to 80 percent of jurors make up their minds about which side’s story is the truth after opening statements. First impressions are often lasting impressions.

Third, proof, or apparent proof, is largely a function of presentation. Apparent proof is clear, plain, and evident. A picture is worth a thousand words because seeing is believing.

Aristotle only had oratory and perhaps a few drawings to instill mental images in the minds of his audience; 2,400 years later, we have not only pictures, photographs, and dramatizations but also animations to carry the motivational theme embedded in presentations. Use of imagery is an absolute necessity in persuasive presentations.

Conclusion
Is the goal a litigated conclusion or a negotiated conclusion? A litigated conclusion is not the same as cutting a business deal that considers and weighs the often unspoken and far-reaching interests and objectives of the client and involves the client directly in the decision-making process. Effective litigation advocacy concentrates on a contested result and is not distracted by a concerted effort to focus on compromise resolution.

In contrast, effective mediation advocacy concentrates on the choice of words, the manner in which they are delivered, and a presentation that will give the opposing party a reason to reconsider its position and cooperate in reaching a resolution without trial.

Edmund J. Sikorski Jr. is a civil mediator in Ann Arbor, Michigan.


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