|Oregon State Bar Bulletin FEBRUARY/MARCH 2011|
Mediation advocacy, like litigation advocacy, is an art. But how is it learned? Mediation advocates rarely see each other in action and have few opportunities to compare their own preparation, approach and negotiation strategy with those of other counsel.
Most attorneys learn litigation skills by watching others take depositions, cross-examine and offer evidence. The privacy and confidentiality that are essential for effective mediation prevent advocates from having that same opportunity to observe. Mediation submissions are usually confidential and most of mediations are held in private caucuses.
Mediation advocates are asking new questions: What does opposing counsel do that is more effective than what I’m doing? How is effective mediation advocacy different from litigation advocacy? How do I add value at a mediation? If I’m not arguing my case, what should I be doing? How can my client have a more satisfying experience and feel better about the process and my representation?
I wish I could carry a video camera with me during my mediations. I have seen mediation advocates who are utterly amazing — well prepared, wise counselors, problem solvers, effective advocates and great deal-makers. I wish their videos could be a teaching tool. I remember and salute those advocates. In this article I will describe the best of what I’ve seen with the hope of helping us all grow in our roles as mediation advocates and mediators.
Help Design the Mediation Process
The best mediation advocates help design a process that optimizes the opportunity for resolution. Mediation can be a flexible process, within limits on structure and decorum. Good process design can improve the odds of resolution.
As mediation has matured and become an integral part of the litigation process, we’ve learned that one size does not fit all. The standard full day or even consecutive days of mediation may not work for cases that involve multiple parties, are legally or emotionally complex, involve large sums of money or intricate insurance coverage issues. A week-day mediation may not work for certain professionals (e.g., groups of physicians); the parties may need to meet evenings and weekends.
The mediation process should make good use of the clients’, lawyers’ and mediator’s time. Separate meetings before the mediation with each side (mediator, lawyer and clients) may be helpful for covering introductory information, for the client to tell their story and to prepare mentally for the next stage of the process involving negotiation and compromise. Sometimes meetings between the mediator and lawyers — without the clients — are useful for narrowing issues, facilitating the exchange of essential information, addressing obstacles to resolution and discussing scheduling.
Why make the effort? A failed mediation costs more than the money and time spent that day. It is also a missed opportunity that may not come again until more time and more money is spent. Additionally, the experience of designing a process together can build trust and encourage cooperation between and among counsel.
Maximize the Value of the
Confidential Mediation Statement
The best mediation advocates prepare a confidential mediation statement that demonstrates an understanding of the big picture. They demonstrate a command of the facts, law and evidence, an appreciation of the problems with their case, and a deep understanding of their clients’ interests. They consider their own BATNA and WATNA (Best and Worst Alternative to a Negotiated Agreement), that of the opposing party and a realistic view (MLATNA—Most Likely Alternative to a Negotiated Agreement) of liability, damages and the monetary and other costs involved in litigation. They gain credibility with the mediator.
In contrast, advocates who submit a mediation statement that is pure advocacy, that merely restates a motion for summary judgment or that ignores challenges the party will face at trial, do little to prepare the mediator, client or lawyer for mediation. A purely partisan document may unrealistically embolden the client, making the discussion of compromise difficult or impossible. If, during mediation, the lawyer then urges the client to make significant concessions and to settle, the client may feel that the lawyer has suddenly lost interest or confidence in the case and provoke a “whose side are you on?” reaction. A settlement that is in the clients’ best interest may be difficult or impossible.
Substance matters, and so does form. Although mediators may try mightily to digest late submissions received the day before the mediation, decipher handwritten and voluminous medical records or find the relevant passages in a deposition, they are not likely to have the time or the appetite to take it all in. They will likely wait for the advocate to point out what’s important and why. Selecting exhibits carefully and marking them with the mediator in mind will increase the advocate’s effectiveness. The best mediation advocates get their materials to the mediator far enough in advance of the mediation to allow the mediator to read, think and analyze.
Let the Mediator Know How
to Be Helpful
The best advocates let the mediator know important information that is not included in the mediation statement. They talk with the mediator about how to be most helpful with their client.
Is the client stubborn, fragile, traumatized, overly confident, unable to see another point of view? Has the client had a prior litigation or mediation experience that creates a pre-disposition, whether negative or positive? What are the client’s obstacles to resolution? Could a joint session be helpful and if so, how should it be structured? Does the client need time to vent? Is the client ready to negotiate? A mediator who understands the client’s needs can be more efficient and help provide a more successful mediation experience.
Come to the Mediation Ready
to Work and to Learn
The best advocates, even those who know their case inside out, want to learn as much as they can at a mediation. They are interested in the opposing party’s point of view and the perceived weaknesses of their case. If they disagree with the opposing party’s assertions, they are prepared to provide deposition excerpts, exhibits or other documents that counter the point of view or case law that undermines the assertion. They offer something substantial to the other side that may cause a reevaluation of its position.
Mediation provides the opportunity to explore interests — underlying business and personal needs — and to ask, what matters to the client, other than minimizing or maximizing the financial value of the claim? How can the resolution be more satisfying to those involved? The best mediation advocates understand that recognizing interests helps settle the case and may improve the post-litigation relationship between the parties and between the lawyer and client.
Mediators sometimes have expertise and experience that can make them a great source of information. They think about the case from the perspective of a neutral and have the unique advantage of having heard from all parties. Mediators are careful about preserving confidentiality and about giving opinions but may respond to questions, such as: What do you see as the biggest problem with our case? Does this strike you as a case where a jury might award high emotional distress or punitive damages? If you were the judge, would you grant the motion for summary judgment? Is a fresh perspective from a neutral worth considering? We all have a tendency to believe our own advocacy. The mediator can provide another view in a low risk and confidential setting.
Have a Reasonable Working
Relationship with Opposing
The best mediation advocates strive for a relationship of trust and respect with opposing counsel. Conflict between attorneys creates a conflict within a conflict. It adds to the inefficiency of litigation, compounds the difficulty of resolution and gives the parties negative impressions of lawyers and the legal system. Advocates who demonize or disrespect opposing counsel when speaking to their client add an unnecessary layer of complexity to the dispute. The best negotiators choose their battles and seek opportunities to build a relationship over things that cost little and create disproportionate value. For example, if they are hosting the mediation, they are generous with hospitality and accommodations. They make concessions on unimportant issues. The benefit is hard to measure but such gestures undoubtedly contribute to an atmosphere of cooperation and resolution. Small things make a difference. Courtesy and professionalism allow counsel to focus on the deal points that really matter to the client and avoid the distraction of unproductive interpersonal dynamics.
The best mediation advocates and mediators have made great strides forward in the last decade. Where could we be in five years? What can we do differently that will enhance the quality of dispute resolution and client satisfaction? The best mediation advocates will continue to work on creative ways to make dispute resolution more efficient and economical.
ABOUT THE AUTHOR
Susan M. Hammer is a commercial mediator based in Portland and is a senior fellow at the Willamette University School of Law Center for Dispute Resolution. She is a distinguished fellow in the International Academy of Mediators, serves on the panel of the National Academy of Distinguished Neutrals and is listed in the Best Lawyers in America and Oregon Super Lawyers for Alternative Dispute Resolution.She was formerly a partner at Stoel Rives.
© 2011 Susan M. Hammer