Advocacy in Mediation Means Rethinking Legal Skills
By Lawrence H. Hoover Jr.
Virginina Lawyers Weekly, March 4, 1996
Is advocacy in mediation an oxymoron? What do lawyers need to know about representing a client who is using mediation? Do we need to redefine advocacy in this context? These are among the questions often raised by attorneys when the subject turns to mediation and alternative dispute resolution.
Unquestionably, the momentum to mediate is building. Professional periodicals recount that more and more clients are relying on mediation to settle cases and resolve disputes outside of court. Judges are increasingly prone to ask about mediation or order mediation prior to trial. So the reality of law practice itself is a motivator. In addition, many lawyers are experiencing the advantages of mediation for their clients. Or they are questioning whether a non-adversarial approach would not be more appropriate in a given case.
First I will address the threshold questions of when to consider mediation and how to ‘set the table.’ Next I will cover preparation for mediation and the attorney’s role in the mediation session.
When to mediate?
Many suggest that all disputes are appropriate for mediation unless 1) the parties that have the decision-making authority cannot attend, 2) where there is need for a judicial decision to set precedent or 3) where there are political or budgetary realities involving public bodies.
This is threatening to those that believe that the process of adjudication is the primary and preferred process. The reality is that only a small percentage of cases are tried. So a strong case can be made for early mediation intervention before positions have hardened and significant pretrial costs have been incurred.
Is the question of when to use mediation the lawyer’s call? This raises an ethical issue and in response several states have responded by specifically requiring lawyers to advise their clients about the availability and appropriateness of mediation. Such advice is probably implicit in the ‘competent lawyering’ requirement of Canon 6 of the Code of Professional Responsibility.
Yes, we will mediate.
Once agreement is reached to mediate and the all-important selection of the mediator is made, there are several important steps to be taken.
‘Setting the table’ is one of the first items of business. The parties, usually acting through their attorneys, need to discuss with the mediator the question of who should attend the mediation. This is a practical question and requires an early discussion of the issues and expectations of the parties. When an organization is involved, it is especially important for a representative with decision-making authority to be present. It is also important that parties themselves attend and not merely be represented by an agent, attorney or insurer.
Pre-mediation submissions are useful in preparing the mediator for the session. If a suit has been filed, the pleadings are an obvious beginning. The mediator should set the parameters for what needs to be submitted and need not get overly involved in the legal and factual complexities of the case. It is equally important for the mediator to be aware of the history of the negotiations to date, as well as the subjective or human factors that may be relevant.
This preparation can be focused efficiently at the pre-mediation stage, often by teleconference among the attorneys and the mediator. This provides a good opportunity for an exchange of expectations about what will happen at the mediation session.
Client preparation is the most important pre-mediation activity. Some clients have never experienced mediation before. Those who have may not have recognized its full potential. The first objective is to educate the client. While the client may be focused on saving money and time, it is important to point out that the process offers an opportunity for a more creative result that satisfies the essential needs and interests of all parties. The dividends of such a solution could be the preservation of an important relationship, as well as significant psychological or emotional relief. This frees energy for more productive activity.
But what about the client who is angry and does not want to hear about preserving relationships? Allowing the client to express that anger may be the most useful thing the lawyer can do as preparation. Then it is easier for the client to accept the advantages of trying mediation and to understand that there is little risk since you can always get on the litigation track if mediation does not work. The client is also in better shape to begin to look at some creative options for settlement.
This is a challenge for some clients who have not experienced collaborative negotiation with the ‘enemy’. Perhaps the most difficult part of this strategy to understand is that ‘collaborating’ does not mean being weak. Indeed, you and the client can be assertive, if not aggressive, about what’s really important to the client. It is especially important to explain to your client that you will be trying to develop rapport with the opposing client as well as the other attorney so that a settlement can be reached.
After the mediator’s introduction, the issues of the dispute are presented. The pre-mediation conference should cover how these initial presentations are made. Opening statements by lawyers are common. The important points should be covered here and a positive tone created. The client often needs a chance to tell his story directly to the other party because this probably has not happened before, at least not in a controlled and safe setting.
A client’s opening statement, unframed by the lawyer’s presentation of the legal issues, is much more likely to highlight the non-legal factors which are usually driving the dispute. Sensitive facilitation by the mediator and empathic responses by the opposing attorney can pave the way for more effective problem-solving.
The opposing attorney is usually seen by a party as the enemy. Whether or not this is an accurate assumption, it still makes sense for a lawyer to talk directly to the opposing party. This is the person that needs to be persuaded. The attorney can set a positive and constructive tone and develop some rapport by letting the opposing party know that the other side is truly working toward an integrative solution. This is counter-intuitive for most lawyers but it works! But be sure your client has been prepared for this.
After the opening session, the mediator may meet with each party and their advisors separately. Everything that is said in this separate session is considered to be confidential in order to encourage an honest and frank discussion. The mediator can then be authorized to communicate certain information to the other side. The separate session gives a party the chance to express strong feelings. It also gives the mediator a chance to find out what the essence of the dispute is for each party. In addition, it helps identify needs and interests. Here the lawyer can help the client articulate what is important.
While mediators may have a preference for separate sessions, particularly for venting, there could be an advantage in encouraging parties to express themselves more frankly in a joint session. A skilled mediator can manage this kind of exchange. Although there is some risk involved, the dividends are often significant for the parties. As a result, the way may be cleared for more creative problem-solving. Lawyers who have prepared their clients well for this kind of exchange can suggest such an approach to the mediator and help control the process.
The role of ‘collaborative lawyer’ is not new for most successful lawyers. Understanding the strategies of problem-solving and integrative bargaining helps the lawyer take a more constructive role in the mediation session. This is even true when it comes to negotiating price or the amount of damages. In mediation, if it is to be used to its highest potential, collaborative lawyering coordinated with the client is the right choice.
But what if the opposing lawyer assumes the gladiator role? Collaborative lawyering does not require that you give in. Strong assertion of the client’s interests is still the lawyer’s ethical and professional responsibility. By using the strategy of empathic listening instead of getting drawn into a power struggle, the other side may eventually join you in a more collaborative strategy, especially if they see that you can’t be bullied.
Role of law in mediation
Another component of the mediation process that deserves special attention is the role of law in mediation. While the lawyer needs to be well prepared on the legal issues and able to articulate the client’s position, this should not dominate the negotiation. Adjudication and adversarial negotiation depend heavily on the application of legal principles. In mediation these are relevant, but they need to be considered along with other factors, such as social, moral, economic and political considerations, by parties who are trying to create an outcome that satisfies their respective concerns.
In cases where there has been emotional as well as economic damage, the lawyer needs to give the client a chance to reflect and to respond to an offer of settlement before expressing his evaluation. It is hard for some clients to respond positively if the lawyer has labeled an offer as unacceptable. If the lawyer believes the offer unacceptable, he can wait until the client has responded and then offer the evaluation in the form of questions to the client that test reality.
The lawyer can also help the client focus on the non-monetary aspects of a settlement. It is not unusual for an apology to be an important component of a case and the mediation setting is apology-friendly. If it is appropriate under the circumstances, the lawyer might suggest an apology. Or the lawyer/client team might ask the mediator to seek an apology from the other side.
Being an advocate in mediation is different. In order to maximize the opportunity for the parties to resolve their dispute, a lawyer needs to shift to the problem-solving perspective. But effective advocacy in this setting can also be performed zealously. If lawyers were to approach this advisor/counselor function with the same passion and energy that go into a trial, the image of overzealousness that has plagued the profession for years might begin to change.
Lawrence H. Hoover Jr. is a partner in the Harrisonburg law firm of Hoover, Penrod Davenport & Crist and is a member of the McCammon Mediation Group Ltd. A frequent lecturer and trainer, Hoover headed the VSB-VBA Joint Committee on ADR which drafted the state’s first ADR referral statute.
© Copyright 1996 Lawyers Weekly Inc., All Rights Reserved.
Reprinted with permission from Virginia Lawyers Weekly.