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April 2018

5 tips for winning in mediation

In its beginnings in the 1960s, mediation was considered a reaction to the legal industry, offering clients more control and less cost. But it did not have the respect of legal professionals.

Fast forward to 2018, and you’ll find that attorneys who support mediation are the most effective lawyers, said Forrest S. Mosten, a California lawyer who co-wrote the ABA book, “Unbundled Legal Services: A Family Lawyer’s Guide,” with lawyer Elizabeth Potter Scully.

In a recent ABA webinar, “Effective Strategies for Representing Your Clients in Mediation,” Scully and Mosten discuss strategies to become a more effective mediator, counselor and advocate for your clients.

Mediators are not gladiators, they are problem-solvers, Scully said. “We are coaching, giving the client the tools they need and helping secure the preparation they need to speak for themselves and participate effectively on their own behalf. We need to have the attitude that a mutually agreeable, stipulated result is going to be cheaper for them, and is more likely to stick.”

Mosten recommended the book “Getting to Yes” by Roger Fisher and William L. Ury, which spells out five principles for success:

1.      Separate the person from the problem. For example, if someone doesn’t pay child support, it doesn’t mean they’re a bad person, it means they didn’t pay their child support, and we need to incentivize their compliance, Mosten said. Work to solve the problem, don’t use the situation as an excuse to demonize the person.

2.      Develop options for mutual gain. “The more options clients have from which to choose will probably lead to an agreement that works for both sides,” he said.

3.      Find objective material to lead to common understanding, such as hiring an appraiser to determine what a house is worth rather than demanding your number is the right number and entering an endless cycle of back-and-forth argument.

4.      Focus on BATNA (best alternative to a negotiated agreement), which might not give you everything you want but gives you everything you need, and is more realistic.

5.      Focus on the interests, not the positions. Position is what someone says they want – “I want the house.” But the interest is what is behind the position. Perhaps the interest is that the kids want to live near their friends or one person is an avid gardener and doesn’t want to lose access to the garden. Once you understand everyone’s interests, it’s much easier to negotiate the positions. Usually, when one side has what appears to have an unreasonable demand, look past the demand to get to the interest in order to make progress.

Scully also advocated having a generous attitude during mediation, so every little decision is not conflict-ridden. Giving in on something small, such as the location where the mediation takes place, will generate good will and help move things forward.

Scully said it’s important to model the behavior you want to encourage. Be mindful of your conduct toward your client and all other parties during mediation. Be sure to praise collaborative behavior, no matter who it comes from. And rein in negative thoughts and assumptions, because they can put a negative cloud over the interaction.

When done well, mediation works. In cases of divorce, studies show that two-thirds of men who’ve used a mediator feel they got a fair deal and two-thirds of women who used mediation feel they also got a fair deal, Mosten said.

“Effective Strategies for Representing Your Clients in Mediation” is sponsored by the ABA Center for Professional Development, Division for Public Services, Section of Dispute Resolution, Section of Family Law, Senior Lawyers Division, and the Solo, Small Firm and General Practice Division.


The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.
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