Some "Do's" and "Don'ts" of Mediation Advocacy
Irvine, Mori, Dispute Resolution Journal
Mediation is a powerful tool that is deeply integrated into the civil justice system. It is a rare case that does not have at least one brush with mediation during its life cycle. Whether that encounter is court-ordered, court-annexed, or voluntary, sooner or later, most cases will find their way to the mediation table. This means that all lawyers engaged in civil practice need to be fully prepared to represent their clients in this alternative forum. Unfortunately, our adversary system has produced many attorneys who are ill equipped for the mediation arena. Because of their lack of preparedness, or antipathy to anything other than litigation, some lawyers actually impede the settlement process. As attorneys better understand mediation, they can appreciate what it has to offer and learn to maximize its use. This will result in more settlements that are crafted to satisfy more of the parties' interests.
While much has been written about mediation, little attention has been given to how an attorney should adapt his or her skills to work in this environment. Most attorneys are well trained in combative adversarial techniques that are fine for the courtroom, but they lack the skills to excel in the mediation session. At our court we have tried to educate and assist counsel in this process. When a case on appeal has been been selected and scheduled for mediation, we send a mediation notice to all counsel for the parties, advising them of this fact. A seven-page document accompanies this notice, called "Mediation and Guidelines for Effective Mediation Representation." The Guidelines give counsel an excellent snapshot of mediation and provide helpful suggestions to make the process productive. The two most crucial elements addressed in the Guidelines are the "confidential mediation statement" and the attorney's role as an advocate in the mediation conference.
In our court the confidential mediation statement is prepared for the mediator's eyes only. Because it is one of the most important documents generated in the mediation, attorneys should take the time to craft it well. More than almost anything else, this statement helps the mediator understand the important issues in dispute from the parties' point of view and obtain an idea of their interests. The statement also provides the mediator with a starting point in the process of trying to facilitate resolution of the parties' problem.
The Guidelines offer detailed suggestions about what the attorneys should cover in a mediation statement. The suggestions include a brief recitation of the circumstances that gave rise to the litigation, the present posture of the case (for example, are any related matters pending in other courts?), and any recent developments that may have an impact on the resolution of the case. They also suggest that the attorneys summarize their clients' legal positions and candidly assess their respective strengths and weaknesses, highlighting any sensitive issues that may not be apparent from the pleadings or other filings that could influence settlement negotiations. The Guidelines also suggest that the attorneys prioritize their clients' interests and suggest possible solutions.
Because the mediation statement is considered to be confidential, it is not shared with the other side, and does not become part of the court's file. The purpose of this confidentiality is to allow the parties and their attorneys to be very candid with the mediator.
Some counsel take short cuts for a scheduled mediation. Instead of preparing the recommended mediation statement, they send copies of the pleadings instead. This is a mistake. It shows a lack of understanding about mediation and it is not helpful to the mediator, who wants to help the parties solve their problem, not rule on the case.
Tips for Advocates
The attorneys are pivotal to the mediation. Their work as advocates is what makes the mediation productive. Every attorney has a different approach and needs to act in a way that best serves the client's interests. …