Representing Clients in Mediation: The Missed Opportunity

Representing Clients in Mediation: The Missed Opportunity

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No lawyer would have the audacity to represent a client at trial or at any dispositive motion without adequate preparation. Such activity could be called foolhardy, and could certainly lead to a charge of malpractice. A well-handled mediation has the potential to dispose of controversy, either totally or partially. It is therefore somewhat surprising that many participate in mediations and settlement conferences without having learned either the skills or the subject matter and goals of the process. Rather than use mediation to its full potential, many attend with perfunctory preparation and participation.

Mediation has successfully resolved controversies involving plan differences, competing creditor claims, stay relief, dischargeability claims and the entire panoply of disputes that arise in and out of bankruptcy. Additionally, alternative dispute resolution (ADR) methods have been used to efficiently resolve multiple claims, the procedures of which have themselves been mediated.

To represent a client effectively in mediation, a professional must understand both negotiation and advocacy in the mediation setting. Negotiation skills may be acquired by trial-and-error experience, but may also be learned by training and study. Once the advocate understands how to use negotiating skills, the next step is to understand the mediation's goals and methods to maximize results.

Probably the most important aspect of being effective is preparation: preparation before the process begins, preparation before mediation sessions, constant re-evaluation and preparation during the sessions, culminating in the final conclusion, and preparation for post-mediation progression. Preparation! Preparation!!

The initial question is, what means will best serve your client's needs? Does the client require a judicial determination, precedent or vindication? Is arbitration the best route? Will a monetary or other judgment, which may be resisted, yield the optimum result, or is the client best served by a process that allows for client control over the result coupled with the better chance of voluntary compliance in an agreed solution setting?

The answer requires defining and analyzing the problem. What issues have separated the disputants? What are the parties' needs, their practical goals? To fully understand the issues, the advocate must look beyond the legal issues. If the disputants have a prior business relationship, what needs were satisfied by the relationship? What has disrupted that prior course of dealing? Are the clients' needs being met in light of the disruption? Would the client be best served by repair or by severance? Often the client has not really focused on those issues for a variety of reasons, such as anger and emotion.

Client control over the outcome will go a long way toward client satisfaction.

As a secured lender seemingly locked into a relationship with a problem debtor, is it more important to have an exit strategy rather than the risk of a long-term cramdown? As a former spouse in a post-divorce bankruptcy, is the client emotionally ensnared in the same trauma that was experienced during the divorce rather than viewing the practicalities of post-decree life? In a commercial dispute, is there a business solution that has more practical value than a determination of legal rights? Will a judgment, with attendant enforcement, timing and obstruction potential, really serve your client best?

The advocate, as well as the mediator, must seek to clarify the underlying issues in dispute. As the advocate, you have the luxury of developing a relationship with the client to extract the core issues. Any advance preparation that will assist the mediator will inure to your advantage.

Just as important as client preparation is self-preparation. Realize that you have become immersed in a litigation posture. You have locked your psyche into defining all problems in terms of legal maxims. Those tools help little in framing solutions. You must, therefore, be prepared to redefine your position and role. To mediate effectively, you must undergo a shift of paradigm.

Prepare your client for its role in the process. Instruct the client as to when the client should remain silent, when and how to act, how to use body language and when to consult with you before replying.

Once you have, together with the client, determined the goal, the next step is to develop a plan and theme. A mediation plan must be flexible. The mediation process is not as structured as the trial process. The ebb and flow of discussion is determined by many factors, including personality and style. Develop a plan to steer your presentation through the ins and outs, the give and take of mediation negotiations. Develop a theme to capture both the interest of the mediator and the opposing client. The presentation should emphasize the information necessary for a reasonable and realistic settlement. Anticipate and be prepared to reply to your opponent's position. Better yet, use the opposition to your advantage.

Competent mediators will open discussions with both lawyers and clients. Using skillful questioning, the mediator will explore the litigants' needs and aims, jointly and in private caucuses. You should have already discussed the areas to be emphasized beforehand.

Next, select an appropriate mediator. Factors to consider include: mediation experience, substantive expertise vs. mediation expertise, credibility, patience, affordability, availability, and most importantly, the ability to remain neutral.

Mediation is structured negotiation filtered through a neutral party. There are three broad types of conflict behavior: competing, cooperating and avoiding. A skilled advocate uses all three to his or her best advantage during mediated negotiations.

Use the mediator and enlist the mediator's cooperation to further your goals. Be forthright with both your strengths and weaknesses. Be reasonable in your initial offer or demand. If high, be prepared to justify the initial step and to demonstrate the range of reasonableness. That includes a persuasive presentation as to why the opposing side should consider your range reasonable.

Mediation deals with reality. Your opponent already has a differing view of the dispute. How likely is it that you will convince the opposition in mediation if you have not yet been able to do so in litigation? On the other hand, the mediation may be the first opportunity you have had to direct your argument as to strengths and weaknesses directly to the opposing client. Consider the mediation valuation from their viewpoints. What is the range that may attract your opponent? How can you use the mediator to bring the ranges closer together?

Do you want to open the negotiation or wait for your opponent's opening and then respond? There are pros and cons to each approach. By opening, you may be telegraphing a figure that may be totally unrealistic. On the other hand, once an initial figure is placed on the table, it may have the effect of "anchoring" the negotiation range. If there have been no prior negotiations, use the mediator to elicit movement from both sides.

Listen carefully during the course of the mediation and watch for clues about the other side's strategy or bottom line. Be prepared to change your strategy and tactics depending on the messages received from the other side or through the mediator. Before the mediation, discuss with your client the range of responses and your leave-in strategy for counter-proposals.

Take the time to make effective use of your caucus opportunities. Determine with your client what matters should be treated as confidential by the mediator.

Employ lateral thinking methods to add value and detect solutions. Explore needs outside the framework of the defined dispute, identify resources and examine how both parties' needs may be met.

Once the gap has been substantially bridged, considerations may come into play, such as confidentiality, adequate assurance of future performance, a mechanism to resolve future disputes, and enforcement options.

Once again, the key is adequate preparation. The optimal solution may be obtainable at reasonable cost, with retained control and a structured result. Mutual agreements tend to substantially shrink the enforcement resistance by the agreeing parties. Client satisfaction is the key. Client control over the outcome will go a long way toward client satisfaction. Most clients are not professional litigators. They abhor the cost, distraction and trauma of litigation. A client-oriented result will result in clients who will retain your services when future needs arise.

Author's Note: Techniques to accomplish mediation goals will be discussed by experienced mediators in a thought-provoking workshop to be presented at the ADR Subcommittee Educational Session at the ABI Annual Spring Meeting, April 21, 2002, 8:30-10:00 a.m.
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Journal Date: 
Friday, March 1, 2002