Clients going into the ADR process need, and expect, their lawyer to understand the dynamics of conflict and the process itself. With the constant pace of change in the legislative environment, and in common law, it is hardly surprising that many lawyers do not have a great deal of knowledge in the areas of conflict resolution and ADR.
Despite the increasing use of mediation as the most popular form of ADR process, many lawyers are not prepared for what actually happens in a mediation session. They often appear to have no overall plan of their case, have not prepared their client properly and have no understanding of the other party’s point of view. This impacts in a negative way on the mediation process to reduce and deescalate the conflict.
Some lawyers see their role in mediation as quite limited. They explain the process to the client, may make the opening statement, provide legal advice and then throw their client into the process without any lifeline.
Others try to dominate the process. They behave in an adversarial manner, as if they were at trial, and often limit or prevent their client’s participation in the process.
This is unfortunate as the lawyer has a central role, and, in some jurisdictions, a court bound responsibility, in making mediation work for their client in a constructive, creative and productive way. Below are some tips from experience and from other mediators that can help counsel become a more effective lawyer in mediation:
CLIENT PREPARATION AND PARTICIPATION
As in litigation, preparing your client is the most important step you can take. Your client is central to the process of mediation and should be ready to fully participate in an open sharing manner. If you have a client who can speak well then let him or her interact with the mediator and the other side directly. A well prepared client does not need to be protected from themselves and in the mediation system has full confidentiality to protect them from statements that may hinder litigation, but are helpful in working towards resolution in the mediation process.
INTERESTS AND POSITIONS
A mediation session is not a trial based on legal and factual positions. It is facilitated negotiation. The use of active listening skills and communication techniques allows mediators to focus parties on the issues, while releasing hurts and problem solving.1 If you ask questions, make them open ended, it is not an examination for discovery or cross-examination at trial. Pay attention to body language. Pick up on what others are saying and use that information to assist your client. Highlight the positive, but do not ignore the negative. Encourage the clients to speak directly to each other in the session. If possible, separate the people from the problem. Clients need to see you as a problem solver.
BATNA & WATNA
Working with your client be before the mediation helps you identify your client’s best alternative to a negotiated agreement (BATNA). Further, your client will be able to understand the worst alternative to a negotiated agreement (WATNA) which will help your client to better work towards problem solving the issue. This allows you to work with your client to better decide what the parameters of a negotiated agreement should be. Having these fully understood by you and your client helps you better decide if you must fallback or if your client should continue on with mediation. This allows your client to protect their interests while approaching the mediation with an open hands approach to problem solving the issue.
PREPARE YOUR CASE
Explain the process to your client in detail including the “stages” of mediation.2 Mediation is not the “touchy/feely” process some litigators believe it is. Decide who will attend the session, what their roles will be, and prepare the client for his or her participation in the mediation process. Talk about possible settlement options before the mediation and discuss BATNA and WATNA.
Know your file well and reality test your client to be sure of its accuracy. Be honest in your assessment of the strengths and weaknesses of your clients case. The mediator will, at some time, likely ask what your client really wants/needs to reach a resolution. Your credibility will suffer if you do not have an answer.
PLAN YOUR STRATEGY
Devise a strategy about what your client desires to achieve and how you are going to do it. Consider your options and review your theory of the case. Do this as you would for litigation. Remember that effective advocates are brief, well-prepared, organised, know the law and the facts of the case.
THE OPENING STATEMENT IS IMPORTANT
You may want to open your client’s case in the mediation. Only do so if it advances your clients position. If it will only inflame the parties then let your client lead with their understanding. Do not give in to the temptation to grandstand. This is not court. Show that you understand the practice and dynamics of negotiation and use every opportunity to promote resolution. Be firm but not inflexible.
Put the clients case forward while at the same time, demonstrating that you recognize both sides will have to move if there is to be resolution. Do not threaten or bluster. Do not talk about money in your opening statement. Make sure your opening is to the other party, not the mediator. Your rhetoric is for the benefit of the other party not the mediator, since he or she has no decision making power. Make the opening clear and focus on key issues.
USE PRIVATE SESSIONS EFFECTIVELY
Work with the mediator and be as frank as possible. Make sure that there has been an agreement on whether private sessions are confidential before beginning teh discussion. Trust the mediator. He or she has the skills to help and can do much of your work for you if used correctly.
BE PART OF THE SOLUTION NOT PART OF THE PROBLEM
Often forgotten, is that in mediation, the lawyer is truly “counsel” to the client. He or she helps the client present their side of the dispute and the clients interests to the other party.
The lawyer as problem-solver has the ability to analyse situations through a lens that sees both the clients and opposing parties interests. By translating client positions into interests, generating and assessing conventional and novel options to address the problem, counsel performs a valuable service to the client who often cannot step back from the conflict to see the light at the end of the tunnel. Perhaps most importantly, counsel can work to build consensus around an option which best addresses the goals and interests of a client or the parties involved.
Research studies have demonstrated that even when not as quick or inexpensive as expected, clients prefer the mediation option over litigation in 80%+ of cases. Participating in a mediation is hard work but a satisfied client is the best source of new business and revenue.
1 Spiller, P., “Dispute Resolution in New Zealand, 2nd ed.” (Oxford, 2007).
2 Ibid, at 93.
Galton, Eric, Representing Clients In Mediation, Dallas, American Lawyer Media/Texas Lawyer Press, 1994.
Lawrence, James K. L., “Mediation Advocacy: Partnering With The Mediator,”
(2000) 15 Ohio Journal on Dispute Resolution, 425.
Noble, Cinnie, L. Leslie Dizgun and D. Paul Emond, MEDIATION ADVOCACY: Effective Client Representation in Mediation Proceedings, Toronto, Emond Montgomery Publications, 1998.
Noble, Cinnie, Family Mediation: A Guide for Lawyers, Aurora, Ontario, Canada Law Book, 1999.