Mediation Advocacy Beyond the Norm

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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:

• Briefly list without detail or debate the legal theories for all claims and defenses, and cite without discussion any controlling cases or statutes
• Briefly list without detail or debate all damages and remedies claimed or contested
• Briefly list without detail or debate the key disputed factual, legal, damage, and evidentiary issues impeding settlement
• Briefly list without detail or debate the procedural history and case status (significant trial court rulings, appeals, prior ADR attempts, etc.)
• Anything else important for the mediator to know on a preliminary basis

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:

• Conversation not confrontation
• Communication not interrogation
• Constructive discussion not destructive argument
• An interesting story that is credible and powerful , with a persuasive legal theory and compelling, memorable theme(s)
• Careful choice of words, avoiding “hot button” phraseology, inflammatory and polarizing comments, and sensitive areas
• Presentation that values respect, rapport, and trust with the other side instead of alienating them
• Active listening more than talking
• An open mind receptive to different perspectives
• Calm and positive demeanor
• Problems, not people, are jointly attacked
• Empathy, understanding, compassion, humanity, and even apology expressed when appropriate
• Emphasis on problem-solving for the future not problem-blaming for the past

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

• Involves a collaborative group attempt to understand each other with no set agenda
• Mediator acts as the joint discussion host to initiate conversation and mostly stay quiet as long as it goes well, occasionally joining in to take the conversation in a different direction
• Abandons traditional no-interruption rule in mediation
• Uses interactive dialog rather than a monolog, argument, or lecture
• Encourages polite, non-confrontational questions
• Especially suited but not limited to pre-suit mediations and those with limited discovery
• Little if any lawyer resistance or flare-ups

 “Directed Discussion” as used by Jerry Palmer in Kansas

• Mediator sets the agenda for focused joint discussion by specifically requesting the parties to address particular issues the mediator feels might be outcome-determinative
• Mediator thus controls what topics counsel discuss and the basic flow of information in an organized way
• Mediator prepares a discussion outline for use in joint session based on information gleaned from pre-mediation written submissions and ex-parte conversations with counsel
• Discussion then flows from the mediator’s outline as the mediator directs questions to one side or another
• After the mediator’s directed discussion, the parties are given the opportunity to raise anything else, by question or comment, that they believe should be communicated to the other side before separating into private caucuses to further discuss and consider the issues raised

 “Joint Session 2.0” as used by Jeff Kichaven in California

• Counsel and the mediator jointly collaborate to pre-arrange and set the agenda for focused joint discussion, thus giving counsel some control over the process
• Dependent on counsel’s submission of pre-mediation materials far enough in advance of the hearing to allow time for the mediator to follow-up with counsel before the mediation
• After reviewing the submitted materials, the mediator then confers with each counsel by phone to determine the critical issues and pressure points to be addressed as well as those to be avoided because they’re too inflammatory
• Mediator then works separately to convince each side to focus on those issues and points in joint session in order to lay the foundation for productive conversation between attorney and client in the caucuses to follow

 “Crossed Caucus” as used by the Author

• Involves an informal discussion, adhering to a pre-arranged agenda of specific topics, in which clients without attorneys or attorneys without clients (depending on where the impediments are), meet and talk together, usually in the mediator’s presence
• Relies on mutual agreement to have a casual conversation without confrontation, accusation, or argument
• Focuses on problem solving solutions not problem blaming
• Addresses only what is most important to each side
• Timing is important, and it usually although not always occurs in the later stages of a mediation
• Especially useful in relationship-based disputes such as employer/employee, close corporation or family business, probate, life partner breakups
• Not useful when there is a radical power or sophistication imbalance

 “Extended Open Session” as used by the author

• Similar to Eric Galton’s Learning Conversation in that all conversation takes place in open session, except for minimal private caucusing in order to: discuss problems, proposals, strategy, or confidential information; enlist the mediator’s help; or diffuse tension
• Emphasis is on interactive, continuous, open exchange of information back and forth
• Uses non-confrontational, non-argumentative questions interspersed with extended troubleshooting of issues, brainstorming options, and problem solving with creative, innovative, and unconventional ideas

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.