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Lawyer's Role in Mediation


"If you don't know where you're going, you'll end up somewhere else"

Yogi Berra

INTRODUCTION

Clients going into the mediation process both need, and expect, their lawyer to understand the dynamics of conflict and the process itself. With the rapid pace of change in the legal system, and in substantive law, it is not surprising that many lawyers, even experienced litigation counsel, do not have a great deal of knowledge in these areas.

Despite the increasing use of mediation as the most popular form of ADR process, and even with court connected mediation in Ontario, and elsewhere, many lawyers are not prepared for what actually happens in a mediation session. Unfortunately, they often appear to have no overall plan of their case, have not prepared their client properly and have no understanding of, never mind any agreement with, the other party's point of view. This really impacts in a very negative way on the usefulness of mediation as a conflict resolution tool.

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 a real lifesaver.

Others try to dominate the process. They behave in an adversarial manner, as if they were at trial, and often prevent their client's participation in the process.

The lawyer has a central role in, and responsibility for, making mediation work for their client in a constructive, creative and productive way. Here are some ways you can become a more effective lawyer in mediation:

CLIENT PREPARATION AND PARTICIPATION

As in litigation, preparation of your client is the most important step you can take. Your client is even more central to the process in mediation and should be ready to play that role. 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 can be your most useful weapon to engender sincerity and empathy.

INTERESTS AND POSITIONS

A mediation session is not a trial based on legal and factual positions. It is facilitated negotiation. (Link) Use active listening skills. 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. Be seen as a problem solver. Mediation is generally interest-based so try to move from positions to interests and on to mutual interests.

BATNA & WATNA

Know what your client's best alternative to a negotiated agreement (BATNA) is, and also, the worst alternative to a negotiated agreement (WATNA), so that you can decide what the parameters of a negotiated agreement should be. How can you be ready to negotiate, if you do not know your client's best and worst alternatives to a settlement? You must have a fallback position so that you can evaluate whether or not your client should continue on with mediation.

PREPARE YOUR CASE

Explain the process to your client in detail including the "stages" of mediation. Mediation is not the "touchy/feely" process some litigators believe it is. Decide who will attend at the session and what their roles will be. Prepare the client for his or her participation in the mediation process. Talk about possible settlement options before the mediation. Often even this basic step does not take place.

Know your file well and reality test your client. Be honest in your assessment of the strengths and weaknesses of their case. Know your client's desired outcome and the probable outcome? Know which outcome(s) your client can live with and what is an unacceptable outcome (BATNA & WATNA)? 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 want to achieve by way of settlement and how you are going to do it. In other words, consider your options. You must have a theory of the case. Do this as you would in any court case. Remember that effective advocates are brief, well-prepared, organised, know the law and the facts of their case.

THE OPENING STATEMENT IS IMPORTANT

You may want to open your client's case in the mediation although this will vary from case to case. Whether you or your client makes the opening, it is a valuable opportunity and a one time only chance. 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 your own case forward but at the same time demonstrate that you recognise 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 comments are 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 (CAUCUS) EFFECTIVELY

Work with the mediator and be as frank as possible in the circumstances. Make sure that there has been an agreement on whether caucus sessions are confidential before going there. 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

A cliche, but often forgotten. In mediation, the lawyer is truly "counsel" to the client. He or she helps the client present their side of the dispute and their interests to the other party in such a way that the mediator's presence should be almost redundant.

The lawyer as problem-solver has the ability to analyse situations through taking into account client or party interests and the many factors and circumstances of the dispute. 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 carry out this function. Perhaps most importantly, counsel can work to build consensus around an option which best addresses the goals and interests of a client or the involved participants.

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.


For more information see:

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.


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