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Presentation Skills in Mediation: A Different View

By Jeff Kichaven

“Mediation is a series of presentations to your own clients, designed to allow them to consider, and perhaps accept, settlement options different than the options they had seriously considered before.”

While this definition of mediation is different, I think it’s real – along with other definitions which may also be real.  Many lawyers tell me one reason they come to mediation is to enlist the mediator’s help with clients’ unrealistic expectations.  To serve their clients’ interests, lawyers want their clients to think about settlement in new and different ways.

If that’s true, we have to think about presentation skills in mediation in a new way.  We must ask how we are managing what is presented to your clients, and by whom, to achieve this goal.  We must also ask how we are managing what is presented to all the other lawyers’ clients, and what role you must play in those presentations, to allow them to consider, and perhaps accept, new settlement options as well.

Let’s therefore go through some key moments in a mediation and explore how you might hone your presentation techniques, keeping this different definition in mind.

    1.       Preparation for Mediation.

Your mediator knows you come to mediation wanting help with something, whatever it may be.  In the preparation stage, you can persuade the mediator that you deserve that help.  At least three aspects of preparation require presentation skills to achieve that goal:  The shared mediation brief, the additional, confidential mediation brief, and the pre-mediation phone call.  With each, you can show the mediator you are well-prepared and putting the clients’ interests first.  That’s what will motivate the mediator to help you.

In the mediation brief you share with the other side, you put your best foot forward on the strengths and weaknesses of the claims and defenses as professionally as possible.  To borrow from Abraham Lincoln’s description of good speeches, mediation briefs should be colorful enough to catch the attention, long enough to cover the subject, and short enough to be interesting.  Invective and ad hominem attacks don’t belong in a mediation brief any more than they belong in a brief to a court.  Your presentation is designed to show the mediator you are a good lawyer doing a good job, one worthy of the mediator’s help.

In the additional mediation brief you send the mediator confidentially, the task is a little different; you put your challenges with the other side forward as professionally as possible.  You don’t mind putting these in writing as long as the other side won’t see it.  What does the other side just not seem to “get”?  Why do you think this has happened?  What would you like the mediator to help you explain to the other side, so that the other side fully understands and appreciates the situation as you see it?  Mediators want to be prepared to help you.  It helps us prepare if we know in advance what kind of help you need.  Again, a straightforward presentation without excessive adjectives and adverbs is best.

In the pre-mediation phone call (or nowadays, sometimes a Zoom call), the agenda is different.  Greater candor is the coin of the realm.  It’s the place to talk about the personality and psychological issues in play, including those in play with your own client and in your relationship with your client.  In my experience, lawyers are more comfortable dealing with these issues orally rather than in writing.  What does your own client not seem to “get”?   Sometimes lawyers need help dealing with clients’ unrealistic expectations, and mediators are uniquely suited to give that help.  Again, though, if that’s the sort of help you need, the mediator should know in advance.  Candor generally motivates a mediator to help you with these issues; guide your presentation accordingly.  (A caution:  If you’re not comfortable sharing this kind of presentation with your mediator, you probably haven’t hired the right mediator.)

    2.       The Beginning of the Mediation Day

How the day ends depends in large part on how the day begins.

At day’s end, lawyers often urge clients to accept a settlement option they hadn’t previously considered – paying a little more or taking a little less to get all the benefits of finality when the deal is done.  To close these deals, clients often need a little nudge from the mediator.  Whether that nudge is an impassioned speech or just a nod of the head, you want the mediator’s encouragement to count.  But your clients don’t know us!  Chances are, we just met your clients that day.  We mediators therefore need an opportunity to develop some chemistry and rapport with your client early in the day, so we can use those assets when needed at day’s end.

To that end, mediators often want an opportunity to meet your clients in a caucus (with you present, of course) at the mediation day’s very start.  Here, the presentation skill you need is subtle.  You need to present your clients to the mediator, and prepare the clients for the presentation.  The mediator will generally begin the conversation by asking whether the clients have any questions, or whether there is anything the clients would like to make sure the mediator knows.  Whatever your clients say in the conversation will be better if they think about it in advance; it will be better still if you discuss it with them in advance.  Additionally, if you discuss these matters with your clients in advance, you will be more comfortable with your clients participating in this direct conversation with the mediator in the first place.

When these early caucuses go well – and in the hands of skilled mediators they generally do – the mediator gains familiarity, credibility, and trust in your clients’ eyes.  Those assets are worth their weight in gold when you need the mediator’s last nudge.

    3.       The Opening Joint Session

Remember Opening Joint Sessions?  Mediators used to force people to do them.  They often backfired in antagonism.  Lawyers learned to resist doing them.  So, they disappeared.

Maybe it’s time to bring them back – for a different purpose, and with a different set of presentation skills.

Old-style mediation training teaches that the Opening Joint Session is for setting the agenda for the mediation.  This approach, derived from community mediation training (neighbor disputes, etc.) didn’t, and still doesn’t, really apply in commercial cases.  We know a priori that Agenda Item #1 will be figuring out the amount of money the defendant must pay the plaintiff to get a release.  Many times, the agenda goes no further.  We hardly need an Opening Joint Session to figure that out.

Opening Joint Sessions in these old-style mediations generally resembled opening statements in trials; accusatory, inflammatory, combustible.  That’s because nobody knew what else to do.  Mediators were taught to invite these plenary statements in order to set an agenda.  But the agenda was already there.  Around and around we went.  No wonder everyone wanted to avoid these plenary Opening Joint Sessions.

Now, though, we may have a reason for an Opening Joint Session.  And, we may need different presentation skills for one to succeed.

Recall, as part of our preparation, we isolated the issues really keeping the sides apart – the key points your client and the other side just don’t get.  Voila, there’s your agenda for an Opening Joint Session!  Not a plenary session, but a curated session designed to zero in on the issues where we need to make progress.  Our purpose in an Opening Joint Session with this narrow agenda is not to flame-throw, but to make sure everyone hears the state-of-the-art of each other’s thinking on these keystone issues.  It’s a very different presentation than the kind we all learned to avoid in the old-style world.

Why is this critical?  Because after a calm, informational Opening Joint Session on just one or two keystone issues, the sides can caucus with the mediator to digest what they just heard.  Often, when clients hear these discussions, they understand in a new way that their expectations may indeed be unrealistic; that the other side, when they behave calmly, may have some meritorious things to say after all; that the case may be more of a horse race than they originally thought; and that they should perhaps consider settlement options they had not seriously considered before.

When skilled lawyers and mediators work together to help clients make better decisions in this way, it’s a good day for all involved.  The moving pieces fit together.  More cases settle.  Clients are happy.  The key is for lawyers to adapt to new conceptions of mediation, and to hone new presentation skills accordingly.

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