Attorneys in Mediation: For Better or Worse?

An Interactive Forum

Two panels led the interactive forum. The first was a group of attorneys selected for their hard-hitting style and experience; the second, experienced mediators, all with different backgrounds and styles. They discussed their perspectives and experiences in mediation – what works for them, what hinders success – and responded to all kinds of questions.

Advocates’ Perspective: Moderated by Jessica Notini

In response to questions regarding their motivations to take a case to mediation, Advocate panel responses ranged from simply settling the case to using mediation as a vehicle for informal discovery. Plaintiff’s counsel sometimes go to mediation because they believe they have a bad case and want to settle it early-on, they believe their client is overvaluing it and needs to be brought around to a more realistic view, or they want a forum in which to demonstrate to the other side the strength of their case.

All advocates agreed that counsel and clients will tend take the mediation more seriously and be much likely to settle if they are paying for the mediation. When clients have not invested their own money in mediation, panelists said, they have less to lose if it fails. Mary Alexander of Alexander & Associates, who is President-elect of the Association of Trial Lawyers of America, said that she takes an open approach to the mediation process and is always interested in it as an option. “For plaintiff, it’s a process they need to go through, to work through what happened and what the options are.” From an advocate’s perspective, she was not so concerned about whether the case settled at mediation or not. “If it does, fine. If not, mediation is still of value to learn more about the case.”

A number of advocates said that their intent in mediation is to facilitate a win by using it to optimize their clients’ position in the litigation. “It’s a great opportunity to showcase my client and impress the other side, to show them that we’re in a powerful position and ready to go.” said Steve Goldstein of Goldstein, Gellman, Melbostad, Gibson & Harris. In contrast, Marjorie Heinrich, Staff Counsel for State Farm Insurance, stated, “The goal is to be fair and to get the best possible settlement. I’m not at a mediation unless I want to settle a case.”

One panelist felt that the quality of mediators has declined because so many retired judges and former litigators without adequate mediation training have held themselves out as mediators. The view was that these people sometimes do not fully appreciate the concept of neutrality and are conducting settlement conference-style sessions where they simply tell people what to do. In general, the advocate panel said they favored facilitative mediators who assist in the negotiations between the parties, point out where problems may exist, and help them explore options for settlement. When mediators known to be very evaluative are chosen, it is generally because the advocate wants to use their status to try and influence the other side. Persistence, neutrality, and trustworthiness were cited as the most important qualities they look for in a mediator.

There were a wide variety of views as to how best to conduct the mediation sessions, including the extent to which clients should speak and how negotiations should be conducted. Based on a calculation of whether allowing the client to speak would jeopardize their positions, some panelists advocated conducting the entire mediation in private caucuses while others favored staying in joint sessions as long as possible. Some believed their clients should be silent in the joint sessions, yet speak freely to the mediator in private caucus. Others encourage their clients to speak freely in both joint and private sessions.

As to negotiations, is was generally agreed that mediators shouldn’t focus on the numbers too soon, that the facts, strengths, weaknesses and emotional aspects of a case should be developed first. A common complaint among advocates was in finding that the opposing party had sent a subordinate without full authority to settle. Steve Goldstein, a transactional and litigation attorney, said, “If the other side brings in a lower-level person who can’t sign the check…well, I’ve walked out when someone has no real authority.” According to Randolph Hall, Oakland’s Chief Assistant Attorney: “When one party is the government, you have to know who has settlement authority. What’s the government process? It’s important that the mediator understand in pre-session the settlement authority and the length of the process.”

Another theme echoed by both groups was the crucial importance of building trust between the mediator and the parties. Hall said, “It is so important to develop trust from the time of the first phone call to the end of the process. If there is a sense of trust between the mediator and us, the more open my client and I will be. Don’t try to resolve big emotional problems first. Resolve the easy ones, then build momentum for other harder ones. It’s all part of building trust.”

Steve Goldstein: “In my view, mediators do advocacy for both sides. They need to be able to express my issues powerfully to the other side. In a good mediation, everybody gets his or her best argument put forward. Then you feel open to making a deal.”

Asked whether they ever try to manipulate mediators, and if so, how, Steve Goldstein gave the most frank response: “Regarding the facts, never. Regarding my bottom line, yes. I’m cagey about the numbers. I don’t give the mediator my real bottom line if I’m concerned the mediator will tend to seize upon that and try to get there too fast, when we might have done better.”

Among the other important issues featured in the advocate discussion was court-ordered mediation. Several panelists agreed that if a case is ordered to mediation before “the will” to resolve it exists, it may be less likely to settle. In addition, since most court-ordered mediations are of so little cost to the parties, they have less to lose if it fails.

Advocates agreed that while they may want to know what a mediator thinks in a given case, they do not want mediators to tell them what to do.

Mediators’ Perspective: Moderated by Teresa Carey

In contrast, the Mediator panel presented some very different perspectives. While they were generally gratified to see many more advocates with a fairly good understanding of the goals, opportunities, and benefits provided by the mediation process, one panelist said he was surprised at, after 20 years, how long it has taken for some litigators to get the concept.

Mediation panelists agreed that, in their view, the purpose of mediation is to bring both sides together, not only to settle for a dollar value and dispose of the litigation, but also to address the needs of the parties, explore creative solutions to resolve the underlying dispute, and achieve a common objective. They encouraged the idea of airing issues that might not be directly related to the legalities of the case, but were nevertheless causing some angst that blocked one or both parties. While acknowledging that some cases will primarily be concerned with money, they agreed that almost no case is only about money. Mediators viewed mediation as a place for clients to talk, vent, explain, express their values and feelings, and a place to repair relationships, if appropriate.

The mediator panel generally did not favor the idea of using mediation as a forum to “shock-and-awe” the other side. As stated by Debra Mellinkoff of Mellinkoff Mediation, “Using the element of surprise and heavy-handed intimidation usually doesn’t work. When you scare people, they don’t move, and therefore won’t agree. That doesn’t get you where you want to go in a voluntary forum.”

Nicholas Dewar, a business dispute mediator with Hagen, Streiff, Newton & Oshiro, said that attorneys in mediations often direct their opening statements to the mediator instead of the other party, in the tradition of a trial. The statements are framed in a way that paints the opposing party as completely wrong. In Dewar’s view, this is problematic because it is the other party listening who has half of the power to decide the outcome of the negotiation. The best approach for the lawyer is to direct the opening statement toward the mediator and the opposing side using non-inflammatory language, and demonstrating a desire to work with them.

Quinn agreed: “If you’re trying to get the other party to agree with you, why would you want to insult them? Nice attorneys and nice clients generally do better. Positive begets positive in this forum.” “Opening statements are a golden opportunity for a party to look the other party in the eye and be persuasive.”

Mellinkoff agreed with Quinn and Dewar: “I ask the lawyers to speak first, then the clients next. The more knowledgeable and comfortable the lawyers are, the less they need to control every aspect of the interaction.”

She continued, “Also, lawyers should think about expanding the pie before getting to a mediation. They need to think of a list of potential things to put on the table, not just money. There may be other issues – apologies, assisting the other party in job placement, acknowledging one’s part in the escalation of the dispute, practical steps that can be taken – that may make a big difference in how the negotiations go.”

“Attorneys don’t want mediators to tell them what to do, but do want to know what the mediator thinks.” said Gary Weiner, former Director of the Sonoma County ADR Program. Acknowledging that almost every case involves a determination as to money to a greater or lesser extent, he added, “You have to find out what money means to people. To them is it food? Is it a place to live? For a combative person it might just be the fun of taking it….”

Kenneth Hawkins of Hawkins & Associates: “When attorneys do their shock-and-awe presentation, I have a few choices: (1) I can confront them. This usually isn’t a good idea since it just makes them get out more guns. (2) I can recognize the reason that they believe they need to do this. I’ll listen and talk to them privately to explore whether this is really in their best interests for purposes of the negotiations at hand. (3) I can ask for their help. I’ll say, ‘You both have very good arguments but threatening doesn’t get us very far here today.’ I’ll try to focus back on the human side and the options at hand.”

The human side may be the key in certain cases. While the parties may be arguing about money, the human needs behind the dollar numbers are what some disputes are about. When these needs are addressed, cases settle sooner than they might if only dollar sums are discussed.

Nicholas Dewar, “My concern is to make sure that the mediation is framed as a discussion about how to solve a problem, not just settling the litigation. You have to unfold it.”

Martin Quinn, “The ability to listen is crucial to a successful mediation. Lawyers should be hard on the issues and soft on the people. Lawyers have to maintain their roles as strong advocates because that’s their job. But this doesn’t mean that they must be combative. A hostile approach will engender animosity and lead to stalemate.”

Quinn stressed a major benefit of having attorneys at mediation: “They sometimes help bring a sense of reality and perspective to an overconfident client, and they are very good at finding ways to solve problems, once they decide that’s what they want to do.” Quinn’s eyes twinkled, “Lawyers are very useful human beings.”

Kenneth Hawkins: “I try to build relationships with the attorneys. I see them as partners. I won’t let myself be used as their personal advocate, but I will be a process advocate.”

Mediator panelists outlined things they would like advocates to do, including thorough preparation, being sure to bring persons with full settlement authority, being willing to engage in an informed, realistic discussion of the strengths and weaknesses of their case, and bringing all relevant information necessary to analyze their best and worst alternatives to a negotiated agreement (BATNA/WATNA). They offered some advice to advocates: don’t go to extremes; make reasonable demands; set a positive, relaxed tone; don’t rush the process; share information; think about what needs of the other side might be met without prejudicing your own client; encourage communication; keep talking. Finally, they discussed various options available in the negotiations employed to reach the financial part of any settlement, including mediator evaluations, and use of the “mediator’s number” process.

Conclusion

Participants engaged in this lively, frank discussion, compared notes, and aired their different perspectives about mediation and its evolution. For both advocates and mediators, the forum was an opportunity to try to get to the bottom of what is working, what isn’t, and why. The fact that mediation has become an important part of the legal process means that mediators, advocates, and the courts can benefit from examining and exploring how best to work with each other, maximizing positive contributions and minimizing potential detrimental effects. It appears that the forum was a substantial step in that direction.

                       

Teresa Carey

Teresa Carey has been a professional mediator for over 20 years and is a well-known mediation instructor. Since 1980 she has mediated numerous cases including business, labor & employment, architecture & construction, real estate, tort claims, healthcare, civil rights, probate & trust matters. She is a board member of The… MORE >