This article was published in the Detroit Legal News on October 27, 2017.
When it seems like everything around you, globally and locally, is in a constant state of dysfunctional conflict and turmoil, it is easy to think and act like it’s normal to be disruptive and disagreeable. Nothing could be further from the truth. It doesn’t have to be that way when it comes to the practice of law and life. It is possible for lawyers to treat others with respect, civility, understanding, and professionalism. Mediation is the perfect place to do that. This article discusses possible ways for lawyer advocates in mediation to rise above the ordinary and dramatically enhance the process, provided that they and their clients genuinely share the same goal – – resolution of the case or controversy. Based on actual experience, these techniques work.
Aside from strategically preparing clients adequately prior to the day of mediation, the most important pre-mediation activities for lawyer advocates are preparing a written pre-mediation case summary and oral remarks to be presented at the mediation during any opening joint session. Each of these will be addressed separately. What follows is not intended to be a comprehensive discussion of best practices. Rather, it is submitted for your consideration as suggested alternatives.
EFFECTIVE WRITTEN MEDIATION ADVOCACY
Standard mediation practice requires parties to mutually exchange written pre-mediation summaries unless the dispute is relatively simple or preparation cost is a factor. Ultimately it depends on the parties’ and the mediator’s mutual preferences, which should be determined in advance when arranging the mediation. Submitting background information via documents already in existence, such as case evaluation summaries used in Michigan or dispositive motion briefs, in the interests of saving costs risks alienating the parties further instead of drawing them closer. By definition these documents are intended to be heavily adversarial, argumentative, and one-sided rather than collaborative.
Unlike the summaries and briefs mentioned above, pre-mediation summaries give an advocate the latitude to set a non-adversarial tone conducive to joint problem solving. While it is appropriate to zealously yet fairly advocate one side of a dispute, crossing the line into argumentative or confrontational territory can be avoided if desired. Inflammatory and polarizing comments likewise can be eliminated. Additionally, an open mind and a serious intent to negotiate in good faith can be diplomatically signaled to the other side.
A couple of different approaches regarding pre-mediation summaries have been tried in an effort to minimize or eliminate the risk of “poisoning the well from which one drinks”. One strategy is politely suggesting to the attorneys in scheduling correspondence that if they are planning to submit a pre-mediation case summary that is adversarial, argumentative, and accusatorial, then they might want to reconsider that thought in the spirit of mediation and send one that tones down the destructive rhetoric yet still advocates for clients. Otherwise, attorneys should send only existing background materials and spend time, effort, and money more wisely by preparing with their clients for meaningful negotiations.
While the above strategy has worked often enough to continue it, unfortunately it doesn’t achieve widespread compliance. More promising is the other strategy which is to request that counsel submit, with as little as only two or three days advance notice, a succinct 1-2 page case synopsis in non-narrative, bullet-point format, limited to the following information:
The latter strategy was used most recently in a complex, high stakes case. It resolved in mediation due primarily to the collaborative, problem solving, working relationship among multiple parties that hadn’t been poisoned by typical pre-mediation summary destructive rhetoric. Information gaps and missing details were subsequently filled in during several days of open conversation in joint session. This process will be used again in an upcoming similar case where the stakes are high as well.
PERSUASIVE ORAL MEDIATION ADVOCACY
Except on those occasions when counsel or the parties really can’t stand being in the same room with each other, advocates ought to welcome the opportunity to use the gift of an opening joint session in order to appeal directly to the decision makers on the other side and to express/vent emotions constructively. Besides, in this age of vanishing trials (based on recent statistics, only slightly over 1% of all cases filed ever reach trial), the most common way for advocates to perfect their oral advocacy skills is during mediation openings in joint session.
At the root of many disputes are misinformation, misunderstanding, and miscommunication. Joint sessions usually help eliminate a lot of these problems. Even if shuttle diplomacy between isolated parties in separate rooms is handled by a skilled mediator, something is lost in translation no matter how careful and diligent the mediator is in conveying the message. The parties also lose the opportunity to ask clarifying questions directly and observe non-verbal communication, among other advantages. Although counsel’s style may be that of a zealous adversary during litigation proceedings, it’s possible to take a kinder, gentler approach when advocating during mediation, unless of course that conflicts with overall strategy.
From the objective perspective of an experienced mediator, here are some techniques I find most persuasive and least antagonistic during opening joint sessions:
Now, we know that folks in Michigan and elsewhere often frown upon the use of opening joint sessions for all of the usual, well-known excuses, many of which are legitimate concerns. Unscripted, unrestricted, and unguided opening joint sessions are risky and can be a recipe for mediation disaster. However, have you considered modifying your approach to make it work effectively instead of rejecting it completely? Absolute refusal to consider joint sessions is like throwing out the baby with the bath water, as the old adage goes. Briefly, here are some innovative alternatives for restructuring traditional joint sessions to make them more productive:
“Learning Conversation” as used by Eric Galton in Texas
“Directed Discussion” as used by Jerry Palmer in Kansas
“Joint Session 2.0” as used by Jeff Kichaven in California
“Crossed Caucus” as used by the Author
“Extended Open Session” as used by the author
What can we learn from all of these non-traditional methods? Since mediation by its very nature is flexible and adaptable to different situations, advocates who aren’t afraid to test out such techniques and others will become more versatile in their practices and perhaps more in demand. We are not suggesting their use in every mediation or even in most mediations. But if you try sometimes, you just might find, you get what you need in a mediation.
As I deliver mediation training, it is fascinating to see a new group come to grips with its nuances. People, often already highly experienced in their own field, are exposed...By Charlie Irvine