Preparing the Case for Mediation

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion.

So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely:

• Discuss the costs, risks and benefits of not reaching a settlement.
• Discuss the best result each party can hope for in litigation.
• Discuss the worst result that could happen in litigation.
• Ensure that the client knows the facts and issues of the case.
• Examine the legal and factual strengths and weakness of each party’s case.
• Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” items. 
• Surmise the opposing party’s position, goals, and interests. 
• Explore the client’s emotions that the dispute, the other party, or aspects of the mediation may trigger.  Allow the client to express those emotions before the mediation, but reassure the client that a skillful mediator will help the client manage the emotions and their appropriate expression during the mediation.
• Advise the client on how to best put forward his or her interests.
• Advise the client about any confidential information which should, as a matter of strategy, not be disclosed to the other side or disclosed only when strategically appropriate.
• Help the client set reasonable expectations for mediation.
• Identify sources of objective criteria that will allow principled bargaining over money.
• Develop additional strategies for handling the money issues involved.  I'll discuss many of these strategies in later posts.
• Prepare the client to expect unforeseen evidence or arguments that may arise during the course of mediation.
• Prepare the client for questions the mediator or the other party may pose to him or her.
• Identify possible impediments to a negotiated solution, including relationship issues, data or information problems, conflicting interests, structural sources of the conflict, and value-based sources of conflict.
• Brainstorm possible solutions to the situation, especially focusing on solutions that can satisfy the interests of both parties.  Ask the client to identify and list all the responses he or she can make to satisfy the other party’s interests. 
• Ask the client to identify and list all the responses the other side can make to satisfy the client’s interests.
• Determine whether any limits exist on a party’s ability to settle.
• Discuss negotiation styles.
• Develop an opening offer strategy.
• Practice, in role-play, the agreed strategies and styles.

How lawyers prepare clients for mediation depends on their client representation skills, their experience with the process, their attitudes towards mediation, their expectations about the process, and the client’s expectations about the process.  Over twenty years ago, I represented a client in mediation for the first time.  Instantly, I was a “true believer.”   After that transformation in perspective and professional goals, I have spent the last two decade assembling the skills I need to teach students about mediation, represent clients in the process, and serve as a skilled neutral.  While mediation may no longer be the latest fad, lawyers still have plenty to learn about effectively using the process on behalf of our clients. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm. By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

Preparing the Client for Mediation

In this series of posts, I have discussed the roles of lawyers in the mediation process.  This post continues that discussion.  

Now that the lawyer and client have chosen mediation as a way to handle the dispute, the lawyer may wish to:

• Explain what is expected of the client during the mediation.
• Remind the client that the object of mediation is not to “win,” but to reach a satisfactory resolution.  Remind the client that mediation is simply a continuation of earlier negotiations.
• Encourage the client to value in the mediation process the pre-existing relationships between the parties or the improved relationships mediation can create.
• Ensure that the client or client’s representative has authority to settle.
• Discuss who will give each portion of the presentation and the role the client will play in the overall process and decision-making.
• Advise the client to develop a working relationship with the mediator, use the mediator as an ally, and protect the client’s credibility and trustworthiness with the mediator.
• Coach the client on more effective communication styles.  Ask the client to avoid confrontational or adversarial communication, if possible.  Encourage professional and courteous behavior and the use the language of persuasion.
• Work with the client to prepare an opening statement.
• Prepare a confidential memo for the mediator if he or she has not requested case information in another form.
• Have the client view a videotape of a mediation session.  I recommend Program on Negotiation, Saving the Last Dance: Mediation Through Understanding, available at http://www.pon.harvard.edu/news/2001/stld_video.php3 (Nov. 8, 2005);  Program on Negotiation, Mediators at Work: Breach of Warranty, available at http://www.pon.org/catalog (Nov. 8, 2005).  

This excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm.  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

Representing a Client in Mediation: Pre-Mediation Counseling

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself.

Counseling the Client about Mediation

In counseling a client about mediation, a lawyer may wish to cover the following topics:

• The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute.
• The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement. 
• That mediation creates no legal precedent.
• Whether the case is “ripe” for mediation.
• Whether the client has sufficient information or discovery to make informed decisions at the mediation.
• Whether the parties should request a pre-mediation conference.
• The scope of confidentiality provided by rule or statute and any additional expectations about confidentiality that the parties may need to cover in the agreement to mediate.
• Whether the parties need a standstill agreement.
• The choice of mediator.
• The location of the mediation.
• Who should attend the mediation and whether the client should bring an expert witness, a fact witness, other supporters, or anyone else.
• What pleadings, demonstrative evidence, or other information the client or lawyer should bring.
• The stages of the mediation process.
• The distinction in the role of a mediator compared to a judge or arbitrator.
• The techniques mediators may use.
• When mediation may not be appropriate for the situation because of domestic abuse, extreme imbalances in bargaining capacity, or when the client is impaired by drugs or alcohol.
• That mediation is a voluntary process that the client may terminate at any time.

The lawyer should take time to ensure that the client is ready for a process that may be new to him or her and has adjusted his or her expectations about the process to ensure successful participation in it.

This excerpt from an article first appeared in St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm.

Borrowing the Lawyers' Power in Mediation

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia.   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional responses, she backed out of the deal.   (These facts come from the complaint and not from confidential mediation communications.)

When I first moved to Virginia, I was shocked to find that lawyers participated in every, or nearly every, real estate closing.  At first, I guessed that lawyers had maintained a strong lobby that had kept this part of the real estate business in their hands.  This past summer, I learned from another country judge -- who presides in a courthouse located about thirty-five miles from the Cumberland Gap -- that titles to real estate located in Virginia are especially complicated.  Some of them may go as far back as the first settlements in the New World.   Jamestown, after all, is a popular tourist attraction that people visit after they tour the old Williamsburgcolony, Monticello, and the Yorktown battlefield.  A lawyer who had joined us for lunch exclaimed that some of his biggest malpractice worries related to the accuracy of his title opinions. 

The revised Model Standards of Conduct for Mediators, a set of aspirational ethical guidelines, provide that the mediator may only accept cases in which he or she has the competence needed to satisfy the reasonable expectations of the parties.  The mediator must discuss the situation with the parties and take appropriate actions, if he or she learns during the course of the mediation that the mediator cannot conduct the mediation competently.  Based on the results of the discussions with the parties, the mediator may need to withdraw or seek appropriate assistance.  Virginia’s mandatory Standards of Professional Conduct contain a similar provision.

Thus, when I got the court-appointment to mediate this real estate case, I quickly called the lawyers for the four parties – the seller, the breaching buyer, the seller’s listing agent, and the buyer’s agent --  to advise them that (1) I am not licensed to practice law in Virginia; (2) even though four states have licensed me to practice law, I am on inactive status in each; (3) I had never handled a real estate lawsuit while I was actively practicing law; (4) my code of professional ethics precluded me, as a mediator, from giving legal advice, and (5) if I gave legal advice, I was likely engaging in the unauthorized practice of law.  Did they still want me?

As the day of the mediation approached, I had a few butterflies in my stomach.  If one or more of the lawyers expected me to evaluate the legal strengths of the parties’ cases -- something I would hesitate to do anyway and would only do after providing certain procedural safeguards -- I was not going to meet their expectations.  But I hoped that I could enlist the lawyers to provide their own candid analysis of their clients’ cases.  They would provide the legal analysis and advice as I played quite consciously “dumb.” 

Some of you may recall the character, Joseph Miller, played by Denzel Washington in the film Philadelphia.  He plays the lawyer for another lawyer, Andy Beckett, whose firm has dismissed him from a high-paying, high-status job when his superiors suspect he has AIDS.   Throughout the film, Miller says:  “Explain this to me like I’m a six year old.”  And so, throughout the mediation I asked the lawyers to explain relevant Virginia real estate law to me “like I was a six-year old.”  Of course, I could guess at the law, but the real audience was the explaining lawyer’s client, the other lawyers’ clients, and the lawyers.  I set up this interaction in a private meeting with the lawyers after each client had made an opening statement.  I asked them to help me by explaining their legal theories without rancor, without escalating the conflict, and with some candor.  I probed their presentations with general questions.  I would then ask if a certain theory or piece of evidence created a “soft spot” in that client’s case.  The lawyers felt secure enough, in joint session, to make concessions about the strengths of their cases or defenses, typically through a shoulder shrug or a slight nod “yes” or the body language signally “maybe.”  

Without this give and take among the lawyers, we would not have settled the case.  In other words, the lawyers did the heavy lifting that day.  I just suggested to them how to do the lifting and when I needed it done.

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original are omitted in this posting).

Lawyers’ Increasing Sophistication in Mediation

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.  

A recently published book finally puts in one place much of the good advice on representing clients in the process.  SeeHarold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).  

Dwight Golann has also authored a new book called Resolving Disputesthat he says reflects the perspective of lawyers representing clients in ADR processes.  Several law firm websites now have pages dedicated to preparing clients for mediation. 

Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques.  

At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” 

Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.”  Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement.  Based on the research, these scholars ask us to “bring in the lawyers” to mediation.

I agree, and discuss that topic in my next posting. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted in this posting).