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Speak or Not to Speak

In the plenary session of a mediation, when you have your first opportunity to directly address your opponent’s decision-maker, should you discuss your case?

The current practice is to say nothing.

I often discuss this norm with some of my peers. Why not give the lawyers an opportunity to advocate?

The usual reply is the lawyers already know the other side’s position and beginning a mediation with a discussion about the merits will just antagonize the parties.

I disagree.

Here are three reasons why:

  1. Mediation is a persuasive process

Negotiation is not a series of concessions. Negotiation is a process of convincing your opponent to agree with you. Instead of convincing a jury, you are convincing the other party. Your opponent, if she is skilled, is convincing your client.

If the lawyers don’t take the opportunity to speak directly to their opponents’ decision-makers, and instead just go to offers and demands, these numbers seem pulled out of thin air, with no relationship to the case.

A skilled lawyer will have her opponent thinking his demand is too high and her offer is reasonable. She does that with advocacy.

  1. The mediator is a neutral person

The usual practice is to submit confidential position statements (your opponent never sees it) and go straight to breakout rooms where the only communication between the parties is demands and offers.

And here’s what happens:

You get a demand that is unsupported by any explanation and, from your view of the case, seems over the top. Your client is never going to pay that or anything close. The mediator needs to start to do her job and bring the other side to reality.

This stance raises some questions:

Is the mediator being recruited to be your advocate?

Is she also going to be your opponent’s advocate (how do you feel about that)?

Can the mediator advocate your case better than you?

Will the mediator remember everything in your confidential position statement and raise each point?

Will the other side lose trust in the mediator if she appears to be an advocate for you?

Will you lose trust in her when she starts advocating your opponent’s case to you?

A mediator is not an advocate.

In an evaluative mediation, a mediator is evaluating the case for the parties, testing positions, raising risks you might not have considered, validating interests, and opening your eyes to benefits an agreement will give you. This is sometimes confused with advocacy.

A mediator is a neutral who facilitates an agreement.

  1. Let the lawyers shine.

When I was primarily litigating cases, my clients rarely saw me perform. They did not attend depositions and did not sit in on pretrails. Sometimes they watched part of a trial.

The only times I had a chance to show them they had hired the right lawyer to represent them was in a mediation. So, I viewed mediations to also be opportunities to impress my clients. I prepared and wanted to deliver opening statements. I wanted a chance to shine. Usually this opportunity was never given to me.

Now I serve as a mediator. Given the three assertions above, how do I conduct plenary sessions?

I give the lawyers a chance to shine. I invite them to make opening statements. I see if they will persuade their opponents’ decision-makers (who have never seen their position papers). Sometimes I give a preamble, about how some mediators don’t provide this opportunity; how I trust in their skill as advocates to know the line between insult and persuasion (consider how you persuade someone to hire you). And I frame the opening statement with, “What do you think we need to be talking about to reach an agreement?”

In my view, the best lawyers embrace the opportunity to shine and persuade their opponent’s decision-maker.

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