Attention Attorneys!: How to Achieve the Best Results in Mediation
Hobbs, Karin S., Dispute Resolution Journal
The author is the chief appellate mediator at the Utah Court ofAppeals' mediation office, where she conducts three to five court-ordered mediation conferences per week. She is a board member of the newly formed Utah Council on Conflict Resolution, chair of the alternative dispute resolution committee of the Utah state bar, and a member of the ADR committee of the Utah judicial council.
Then a client walks into a lawyer's office and begins to recount seemingly endless details of a legal problem, the lawyer usually begins mediation preparation. Ten years ago, the lawyer may have set aside much of that information and transformed the "relevant" portions into an intricate web of legal claims and defenses. Today, a lawyer familiar with the mediation process will carefully note and discuss the client's interests and needs and may approach resolution of the problem from a different angle.
Lawyers are there to solve problems. Traditionally, lawyers have filed lawsuits as the expected mode of dispute resolution. However, lawyers and clients have learned that litigation often escalates emotions, increases costs, confuses the dispute, and delays resolution of the problem. Further, litigation almost always results in a win for one side and a loss for the other. Mediation, in comparison, is less expensive, significantly faster, and provides a solution that both sides agree upon. As a result, mediation has become an increasingly attractive method of resolving disputes.
Because the judicial process and the mediation process are vastly different methods of dispute resolution, mediation preparation differs dramatically from that of litigation. The judicial system is premised on the theory that if both sides present evidence to a neutral judge or jury, the truth will surface, and the fact-finder will resolve the dispute fairly. In mediation, however, it is the parties who identify the issues, their interests, and their needs to determine whether---considering all the risks- they can resolve the dispute fairly. The parties are the decision-makers and are empowered to make decisions in the context of mediation. In litigation, however, the parties are asking attorneys to speak for them and for a neutral to decide the case. Judgeimposed solutions are often viewed as unfair, unjust, or legally flawed and often lead to appeals and a continuation of the dispute. Mediated settlements, on the other hand, are not consummated unless they are mutually satisfactory.
Preparing for mediation begins the moment the client begins to describe the problem. The attorney must understand the mediation process and the central importance of the client's interests, needs, and participation in the process. Zealous advocacy exists in mediation, but the form of advocacy is different because it is the parties themselves who reach a mutually acceptable agreement. Therefore, the client's interests and needs are of critical importance. Anticipating mediation as an option, attorneys may also treat each other with more civility to maintain open lines of communication and facilitate resolution of the dispute.
Direct and Honest Statement of Facts and Issues
Attorneys should prepare for the mediation conference by distilling the relevant facts into a concise, direct, and honest statement. Because the parties will likely exchange specific offers to resolve the dispute, both sides must come equipped with current information that will assist in proposing options for settlement. If attorneys and clients view mediation as an opportunity to openly share information and possibly avoid costly discovery, both parties' interests are served even if the case is not settled.
Although much of the factual preparation for mediation overlaps with preparation for litigation, notable exceptions exist. Unlike litigation, the attorney should prepare the factual statement using neutral language and should be mindful that it is the parties who need to reach a satisfactory solution. …