Tips on Advocacy in Mediation

  • March 13, 2019
  • Paul Godin

Lawyers often negotiate in the context of a mediation process. How do you use the mediator and the mediation process to maximize the value of the results for your clients? What approaches should you consider or take in approaching the negotiation table?

Consider and be clear on your role as a lawyer in the mediation

  • Maximize the value for your client and help your client achieve their goals
  • Educate on and protect your client from risks

Your own interests (goals/concerns) as a lawyer

  • As a lawyer and as a human being, your personal goals/concerns in the mediation may not always align with those of your client. Be aware of conflicts
  • Remain cognizant of which goals should be guiding your actions in the mediation, given your duties to your client

Things to consider before mediation:

  1. Should you mediate?
    • Based on settlement statistics, the short answer is “yes” you probably should.
    • You should still consider whether mediation is right for your case, and whether the timing is right for it.
  2. Choosing your mediator and mediation style
    • Select the type of mediator who will be of most assistance to your case. Do you need a good facilitator? A respected third party? A technical expert? What attributes should the mediator have to optimize the chance for success?
    • What style should the mediator use for your case (facilitative or directive; evaluative or non-evaluative; rights-based or interest-based; transformative or deal-making)?
    • Don’t leave selection to a random process. Jointly select the right mediator
    • You can interview your mediator in advance and query them about their style
  3. How to prepare for your mediation
    • Headspace:
      • Know your client’s goals and concerns
        • Identify their core primary goals, and be guided by them
        • Ask your clients what they want, and what concerns them
        • Consider the other parties’ goals and concerns. Understanding their motivation is key to persuading them
        • Consider triggers and issues of principle on either side
        • Identifying the triggers for negative reactions in advance is key to avoiding or minimizing their impact at the mediation.
        • Align client & lawyer expectations on your side and theirs
        • Set the expectations of clients in advance in a rational balanced way. Unreasonable expectations can be a major barrier to movement on the day of mediation
      • Evidence, Support and Proof
      • Identify and gather the evidence you will need to support your points and persuade the other parties, in a form that is objectively verifiable
      • Consider how to best exchange good evidence in advance of the mediation
      • Gather and analyze the available data and evidence
      • How can you present the analysis in a way that persuades the other side to be more agreeable
      • How are you going to persuade them? What is the story you will tell?
      • Strategize on how to use the different parties and the process
        • Consider the full network of relationships. Who do you need to persuade? Who has influence you can use? Allies?  Enemies?  Conduits?
      • Is there value in an administrative conference call with counsel and the mediator to deal with mediation logistics (timing, location/setting, parties, authority, documentary exchanges, agreement to mediate, process, etc.)?
    • Use your mediation brief well
      • This document should be a persuasive one, designed to give the mediator tools to work with, to persuade the other side, and to set the right tone for negotiations
      • Identify and attach key relevant documents and/or cases
  4. Flexibility in plan
    • Recognize that you can’t control what the mediator or the other side will do in the mediation. So make a plan, but be ready to adapt as needed.
  5. Pre-mediation caucuses
    • Consider whether there is value in having the mediator conduct caucuses with each party prior to a joint session conversation
    • Advantages include the ability to explore and manage relationships, improve the communication going forward, ensure parties’ true primary interests are identified early, and explore the true consequences of not reaching an agreement
    • Disadvantages include extra time and expense for the caucuses, and concerns about whether mediators are swayed by hearing one party first.

At the start of the mediation:

  1. Consider whether to make an opening statement or not? What tone?  What content? Respect the people, be firm on the issues. Persuade and educate.
  2. Show respect for the mediator’s opening. It sets a good tone and clarifies the ground rules.
  3. Consider how to begin most effectively (caucus or joint session).
  4. Understand the value of going through the facts and evidence
    • Going through evidence may create an adversarial tone, but gives the parties persuasive information, and the mediators more tools to work with
    • Consider how and when to share evidence effectively (in objective verifiable form). You can share information with the mediator before sharing with the other party if you want to discuss its possible use
  5. Negotiate the relationship. To persuade the human beings on the other side of the table, don’t alienate the decision-makers.

During the mediation:

  1. Choose a style of negotiation appropriate to your client’s goals
    • Consider a collaborative/respectful tone
    • Think carefully before using extreme highball-lowball approaches
  2. Feed your mediator. The more information you give the mediator, the more they have to work with on either side.
  3. Use the mediator. As a tool, as a sounding board.
    1. Ask your mediator to help with: feedback on risks, strategy, and offers; to help with process, to communicate messages more effectively; for reconnaissance; to get information; to hone your analysis; to float trial balloons without attribution.
  4. Find and use good facts- bring them in a verifiable form
    • Bring your whole file
    • If disputed facts are a barrier, find the facts to resolve it or close the gap.
  5. Consider whether an apology, regret or acknowledgements may assist in the resolution
  6. Pick your battles- be aware of the psychology in negotiating
  7. Framing offers effectively. Use the mediator as a sounding board before sending an offer
    • Consider who should make the first offer
    • How should you frame each offer to create the response you desire
    • What message do you want to send? What message will be received?
  8. When issues of principle are barriers, identify what the principle is
    • Encourage reflection on the value of the principle- how important is it?
    • How can you move forward with the principle being respected
  9. Creativity of solutions. Brainstorm ways to achieve goals and deal with concerns

In the closing phase of the mediation:

  1. There are various ways to close final gaps
    1. Put sweeteners or moral victories on the table to close gaps
    2. Develop new options
    3. Blind offers and mediator proposals are tools that mediators can use to get parties to agreement even when all else has failed
    4. A blind offer range can narrow big gaps
    5. Extensions of time for mediation or negotiations
    6. Contingent/conditional agreements can deal with uncertainty that gets in the way of a final binding agreement
    7. Process resolutions can be constructed to take more steps toward final resolution (e.g., using an independent mutually-selected appraiser)
  2. Take the time at the end to close loose ends with clarity
    1. Bring draft minutes of settlement, releases etc.
    2. Where appropriate, work through areas of ambiguity or disagreement in the Minutes with the other side while the mediator is there
    3. Get all appropriate documents signed while everyone is there
  3. When should you walk away? And how?
    1. A good litmus test of whether you should leave the mediation is this question: Which course of action is the higher value to your client: accepting the deal on the table , or your client’s BATNA (Best Alternative To a Negotiated Agreement)? Your client’s BATNA is the course of action they will follow unilaterally (without the consent or cooperation of the other party) if your client says ‘no’ and walks away from the table. If the deal on the table is better than their BATNA, the rational thing to do is to reach an agreement.
    2. Try not to burn bridges when walking away from the negotiation table

After the mediation:

  1. Consider whether to continue negotiations, either after a breathing period or while the iron is hot
  2. Remember that you can call the mediator back in for further sessions/help

Paul Godin is president and principal of Katalyst Resolutions. He created this document with the assistance of fellow mediators Michael E. Dickstein, Steven C. Gaon and Jennifer Bouchard.