Representing a Client in Mediation
By Lawrence H. Hoover, Jr.
Virginia Lawyer’s Weekly, September 3, 2001
Virginia lawyers were introduced to mediation in the early 1980’s as their clients began to use the process, primarily in the family law area. The growth was slow, and the lawyer’s role consisted mostly of referring clients to mediation or reviewing mediated agreements. In the mid-1990’s Virginia lawyers’ involvement in mediation began to increase exponentially. Currently, lawyers from a variety of specialty areas as well as general practice lawyers are involved in advising clients about the use of mediation, preparing clients to mediate, participating in the mediation process (as advocates as well as mediators) and reviewing mediated agreements. What have we learned? The purpose of this article is to review some attitudes, skills and strategies that inform our 21st century practice.
The requirement that lawyers advise clients about the appropriateness and availability of mediation has been a part of our ethical guidelines since the beginning of 2000, and may have been implicit as a part of our Canon 6 (Competence) requirement under the former Virginia Code of Professional Responsibility. It is now made explicit in a Comment to Rule 1.2 of the Rules of Professional Conduct, which requires a lawyer to advise the client about the means by which the representation is to be accomplished. Continuing Legal Education seminars have been helpful in preparing lawyers to carry out this responsibility and to represent their clients who participate in mediation.
The skills and strategies that are the most effective in the representation of a client using mediation flow naturally from the collaborative or problem-solving approach to negotiation. This orientation has always been available to lawyers, but has been articulated in a number of books and articles and made a part of the law school curriculum, if only peripherally, during the last twenty years. This orientation seeks to meet the underlying needs and interests of all parties to a dispute or transaction. It relies on strategies designed to encourage the disclosure, and to consider the relevance, of these underlying needs and interests. In this approach, problem solving is not confined to legal or even substantive issues but could include psychological, moral, emotional or relational issues affecting the dispute or transaction.
The other and more traditional approach to negotiation is the adversarial orientation, which fosters strategies designed to maximize the client’s position through any arguably legal course of action. In this orientation the lawyer’s ethical duty of loyalty to client overrides a duty to third parties and the public interest. Strategies and tactics are designed to discourage the disclosure of the client’s needs and interests and to encourage disclosure by the other side.
The old Virginia Code of Professional Responsibility focused primarily on the adversarial system and offered scant support for collaborative lawyering based on reciprocity and the development of a satisfactory level of trust. The new Virginia Rules, descriptive as well as prescriptive, contain several provisions that acknowledge the importance of the collaborative, problem-solving approach to negotiation. (Rules 1.1 (Competence), 1.3 (Diligence) and 1.4 (Communication). Rule 2.1 (Advisor) supports the deference that may need to be paid to third parties and the public interest by authorizing the lawyer to refer to moral, economic, social and political factors that may be relevant.
Using strategies that support a collaborative, problem-solving process implies that the lawyer representing a client in mediation must be aware of the biases that he or she intentionally or unintentionally brings to the table. While the lawyer contributes important analytical skills based on both education and experience, he or she may also demonstrate some biases or tendencies that may not be so helpful in mediation. Here are some examples:
- Giving too much prominence to legal issues is a risk, since legal issue identification and analysis are what lawyers are trained to do. Although the law is always a factor, it is only one of the many relevant factors in a dispute. Thus, lawyers need to be especially conscious not to allow law to dominate while making sure that relevant legal considerations are a part of a balanced deliberative process.
- An adversarial orientation, acquired in law school and often nurtured in practice, is grounded on the assumption that the parties’ interests conflict, that there is a limited resource to divide and that a third party will decide based on general principles of law. Therefore, negotiation between the parties could easily take the form of positional bargaining with the advocate as gladiator trying to convince the mediator instead of persuading the other side.
- Being in control is another element of the lawyer’s paradigm. A lawyer’s inclination to manage the process may cause important non-legal issues and emotional factors to be avoided or overlooked. In an informal process like mediation, parties need to decide what issues are relevant to their dispute and lawyers must resist the impulse to control and become more comfortable with and responsive to the unexpected.
- In the lawyer/client relationship, lawyers sometimes make assumptions about their client’s goals – that they only want to maximize their wealth or expand or preserve their freedom. Lawyers are often uncomfortable discussing personal, emotional or relational issues which could be at the heart of a dispute. This probably encourages the tendency to focus unduly on legal or monetary issues.
- We all have distinct personality types which determine what we automatically pay attention to and where we direct our energy. For example, depending on the type, a lawyer could be more inclined to see one correct solution to the problem or to be too quick to make concessions.
Self-awareness is the best way to begin to free ourselves from these conscious and unconscious patterns. We can work on this by strengthening our “inner observer,” the uniquely human ability to monitor our thought processes and behavior and to operate more from choice about what’s appropriate under the circumstances – a more contextual approach.
Asserting Our Story as a Team
Assertiveness in mediation is the ability of each party to clearly express and strongly advocate that party’s needs, interests and perspective. The informality of mediation may suggest that preparation for telling our story is not as important as preparation for presentation at a trial. To be sure it is different, but it is no less critical. In a trial presentation both client and lawyer are trying to persuade the judge or jury, while in mediation the primary focus should be on the other side. It makes sense for the initial presentation to be directed at all participants, including the mediator. But after the stories have been told and the interaction begins, it is the other side who needs to be persuaded, not the mediator. And persuasion does not result from aggressively placing blame or attributing negative intentions or motivations. So describing past conflicts as neutrally as possible, with emphasis on the impact on our client, is more likely to be heard and understood by the other side.
Preparation for effective participation in mediation involves an interactive client-counseling process that will help the lawyer and client make decisions about their respective roles in the presentation and interaction. The client still controls decisions but is more open to the lawyer as counselor, one who adds detached, practical wisdom to the deliberative process.
Lawyers often begin the mediation presentation with a summary of the status of the dispute and the client’s perspective, but it may be more appropriate to have the client tell the story first, with the lawyer adding the legal points that complete the picture. One advantage of having the client begin is that the legal issues may take a less dominant role, making it easier to find common ground. The level of client participation is related to the skill level and attitude of the client (and the lawyer).
An important aspect of preparation is for the lawyer to explain to the client the lawyer’s role as problem-solver, advisor and coach, rather than as gladiator. The lawyer’s role will entail trying to build rapport with the other party and lawyer, and may include asserting the client’s perspective while communicating respect for the other side’s point of view. It may also include responses that communicate to the other side that he or she has been heard and understood. Clients must be prepared for this in advance, so that they don’t believe that their lawyer is selling them out by listening attentively or by not attacking the other side. This preparation is especially important as lawyers (and mediators) become more comfortable with more of the work being done in joint sessions rather than in separate meetings.
Responding with Empathy
Active, empathic listening is an essential tool of problem-solving or collaborative negotiation and is critical to the mediation process. Practicing empathy is the process of demonstrating accurate, nonjudgmental understanding of another’s needs, interests and perspective. It involves the capacity to understand and validate another from his or her unique point of view. It has two parts. First, it tries to see the world through the other person’s eyes; second, it is the nonjudgmental expression of the other’s perspective in a way that is open to correction. It is not sympathy or agreement. Sympathy consoles and communicates agreement; empathy understands and is a value-neutral mode of observation.
Angry, hostile behavior is fueled by the perception of not being understood. It is fundamental that parties have the experience of feeling heard, understood and respected. Steven Covey calls it “psychological air,” which is deeply therapeutic and healing. Empathic paraphrasing, reframing and summarizing provides an opportunity for the person who feels heard and understood to achieve clarity and new insights, to broaden and deepen self-awareness and to correct misperceptions. And it gives the rest of the participants a chance to check out their understanding of what was said.
Empathy is an important component of the facilitating strategy of a competent mediator. And it can be practiced effectively by both client and lawyer but, like other strategies, the attitude, timing and skill level of the person using an empathic response must be considered. The detachment of the lawyer may favor the lawyer having the primary responsibility to communicate empathy. If empathy is used with integrity it can be a catalyst for a change in the way parties see each other. An effective empathic response, especially by a party, is sometimes seen as a turning point or transformative moment in a mediation when psychological and relational barriers have been softened and problem solving can move forward.
Empathy is a powerful tool and must be used carefully and with full awareness that it is more than a technique. Authentic empathy treats others with care and respect and is motivated by a genuine interest in understanding another from their point of view. But if offering empathy is a tactic to manipulate the other side, and their thoughts or feelings don’t really matter, it is “functional” empathy and could have a negative impact on the process.
One of the prevalent myths in negotiation is that assertiveness and empathy are polar opposites and that each is incompatible with the other. For example, some negotiators fear that to listen empathically is a sign of weakness or agreement and incompatible with asserting their viewpoint. Others worry that if they advocate too strongly they will upset or anger the other side and that asserting their viewpoint undermines empathy. These attitudes are influenced by many factors, including personality types and prior experiences, so self-awareness is a key factor in coming to terms with the myth. The reality is that assertiveness and empathy are both legitimate and separate negotiation strategies and must be understood, practiced and integrated.
Rehearsal with the client of the presentation to be made in the mediation is as important as preparing a witness for trial. Feedback can identify the likely impact of assertions that could be seen as disrespectful and counterproductive. Empathic responses can be modeled and practiced with friends and family, with the added benefit of improving personal relationships. While awkward at first, practice and feedback will allow these important strategies to become integrated into the lawyer’s negotiating tool kit and useful to the client professionally and personally.
Effective representation of a client in mediation is a departure from the traditional approach to negotiation with its adversarial ethic. It requires self-awareness and a collaborative and problem-solving orientation. Recognizing our biases and learning to use and balance the strategies of assertiveness and empathy are central to this effort. These strategies support our clients’ increasing interest in mediation and the satisfaction realized through use of a more cost-effective process in which they are involved in a more meaningful way.
In the broader sense this approach will tend to improve the professional image of the lawyer in the eyes of the general public as well as the client, while making the practice of law a more satisfying profession.
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