Lawyers who understand and master the skills of mediation advocacy are far more successful than lawyers who conduct themselves as trial advocates in the ADR environment. The mediation paradigm brightly spotlights the client’s role as key decision-maker and the mediator’s job as neutral facilitator in the process. Yet, surprisingly little attention is given to educating lawyers to be effective mediation advocates and the very practical fact that they remain the driving force in any mediation proceeding. The objective of this article is to inform and persuade the successful trial lawyer to develop the necessary skills to be a successful mediation lawyer.
“The 9 Principles of Very Successful Mediating Lawyers” is a compilation of the most effective techniques employed by lawyers who routinely “win” in mediation. These “principles” recognize the very real differences between mediation advocacy and trial advocacy. The combined application of these principles, which I call “Conflict Diagnosis™,” provides the mediation advocate with an analytical and skill-based framework for conducting any mediation. The 9 Principles of Very Successful Mediating Lawyers can be easily remembered by using simple anagram, “DIAGNOSIS” :
The key to successfully using Conflict Diagnosis™is to understand that these principles, either individually or a combination, influence the direction of every mediation. The following briefly describes the role each principle plays in the mediation lawyer’s strategic tool kit.
Principle #1: Describe/map the conflict
The purpose of this principle is twofold: (1) to clarify the literal legal relationships of the parties and (2) to assure that the disputants’ fundamental interest relationships are accurately assessed. This is important because success in the mediation model of conflict resolution (i.e. settlement) rests upon adjusting the parties’ relationships—not by adjudicating legal positions. This principle focuses on the relationships present in the conflict. Strategic mistakes are often made in mediating cases by simply accepting the “case caption” as identifying the participants in the dispute. A more detailed categorization should be employed clearly identifying:
These relationships should be clearly identified; an actual visual graphic “map” is very helpful in showing the lines of conflict, communication and decision-making for these various players.
Principle #2: Identify the sources/causes of conflict
These are the factors forming the basis for settlement. However, the sources of the conflict actually pertaining to the parties’ underlying needs and interests are, like an iceberg, are often below the waterline. The trial lawyer primarily sees conflict as a “war of facts” and thus is focused on gathering the data about the case to support the best possible legal position—hence it becomes a “data conflict.” Similarly, the trial lawyer’s aim is to gain the maximum and minimize liability for the client—the focus, therefore, becomes a “resource conflict.” These sources of conflict are the focal point in the adversarial system of conflict resolution. They are also present in the mediation environment. Yet, parties rarely yield to the best legal arguments as the reason for settlement. After an often lengthy battle over the data and resources, invariably the parties eventually focus upon their needs and interest–factors that are often disguised and obscured by the process of the data and resource conflicts. Such below-the-tip-of-the-iceberg sources of conflict include differences in values; different attributions of causation; communication difficulties; different conflict orientations; cultural differences; structural or personal power; identity conflicts; displaced or misattributed perceptions. For the mediation advocate, therefore, it is vital to explore the real sources of conflict because until these causes are dealt with, settlement will remain obscured by the surface level of the dispute.
Principle #3: Analyze the disputants’ interests
Working from an interest-based approach, the mediation advocate will explore the difference between “wants” versus “needs;” and where the parties’ have common interests or even their divergent interests can be served by a common solution. Legal positions will be sparingly used and, then, as a lens through which the parties test the reality and desirability of someone other than themselves deciding the outcome of their conflict. For the trial advocate, the emphasis is different: The aim is to develop the winning factual and legal position. Court rules, legal research, briefing writing, oral argument, motion practice, jury selection are among the tools used to develop and fortify this adversarial-based strategy for success. However, for the business client, keeping the factory open and timely delivery of orders is the number one need and interest. For the divorcing couple fighting over child custody, their respective but seemingly conflicting needs are centered on parenting—the love for and care of the child. In the adversarial system of conflict resolution, both the business person’s and the parents’ needs get translated into legal categories and theories of contract, torts, domestic relations, etc. The client’s personal needs and interests become obscured and devalued in importance as they are transmogrified into these legal abstractions. In mediation, the lawyer advocate understands that by the time the mediation takes place, the legal positions have likely been fully developed and, theoretically, one side or the other should now be convinced that one or the other has the best legal position and should “win” at trial. But strangely enough, neither side has been convinced. So, to achieve a mediated settlement, the successful mediating lawyer advocate will place the legal positions in a side drawer and put the parties’ common and divergent needs and interests in the center of the table.
Principle #4: Gauge the conflict’s character
The successful mediation advocate understands that in the collaborative conflict resolution framework (i.e. mediation) lawyers and clients must ultimately collaborate to achieve settlement. Breaking the cycle of competitive adversarial conflict, and converting its destructive character into a cooperative one, becomes the focus of the successful mediating lawyer. “Getting to yes” will not take place without agreement by all of the disputants. The challenge for the trial advocate is recognizing that “winning” in mediation is defined by different rules. In the mediation model, unlike a “super bowl” contest, tactics designed to confuse and confound the other team impairs rather than advances the cause of settlement. Collaborative conflict resolution is characterized by investigation and disclosure of the true causes of the conflict, the dynamics of the parties’ relationships, their needs, interests and how to be served them by settlement. Applying the rules that work in the trial game simply does not work to the mediation game board.
Principle #5: Note the trust
Once conflict arises, the level of trust among the disputants deteriorates. Reestablishing sufficient trust to reach any kind of agreement thus becomes essential—without trust no resolution is possible. The successful mediating lawyer understands that different levels of trust/mistrust are present in every conflict and must be taken into account to achieve any kind of lasting settlement. For example, trust may be “calculus-based,” “knowledge-based,” or “identification-based.” Conflicts over calculus-based trust typically involve only the immediate situation at issue—such as a breach of a delivery provision in a contract for parties contracting for a one-time transaction. The trust breach and the trust solution revolve around a performance formula and not on any long-standing relationship or intimate knowledge of the other party’s habits or activities. On the other hand, a conflict involving identification-based trust is one where the parties have developed deep seated feelings or intimate relationships over an extended period of time. The breach of this trust is often seen as a complete betrayal and felt very personally. Any solution to this kind of conflict will be complicated by these circumstances and must employ a methodology that addresses the deeply felt emotion.
For the trial advocate, however, distrust of the other side is one of the key pieces on the adversarial game board. One side says the sky is blue and the other side reacts immediately asserting that it is another color altogether. This becomes an on-going cycle of cause and effect for increased mistrust. The successful mediation advocate appreciates this trust dilemma. Extreme commitment to legal positions and arguments about values and principles are often the surface expression for these kinds of trust conflicts. Employing the distrust game piece not only perpetuates but exacerbates mistrust and impedes settlement. For the mediation advocate, reestablishing sufficient trust to achieve a resolution is a game piece necessary for success on the mediation game board.
Principle #6: Observe the impediments
The successful mediation advocate will examine the conflict for evidence of impediments. These impediments may be: Basic physiological defects in perception; lack of actual experience causing erroneous conclusions; perceptions based upon problematic stereotypes; motivations for vengeance; a meta-conflict (a personal conflict compounding the conflict); a disempowered disputant; a difficult personality; cultural differences; differences in dispute resolution frameworks; and obstinacy by the other side by insisting upon the superiority of its legal position and demands for acquiescence. Observing any one or more of these (or other) impediments enables the mediation advocate to develop strategies for effective responses which may include enlisting the opposing counsel or mediator to help clear away the obstacle and realize resolution. Impediments in mediation should be treated as a joint problem to be solved rather than a strategy to be pursued.
Principle #7: Survey the negotiation styles
Typical adversarial-based negotiation is played out on a win-lose game board. For the mediation advocate, confronting this style of advocacy in mediation can be a challenge. At times, the only effective technique for dealing with such a negotiation style may be responding in kind. However, the successful mediation advocate first attempts to enlist the opposing negotiator in a collaborative effort. This is done through a number of techniques including “educating” the opposition that: to do so will be less expensive and quicker; important relationships that are present can be better protected; collaboration is less likely to breed new conflicts; important non-legal issues and issues for which cause of action has not been stated; can settle entire conflict; the disputants can control outcome; a disputant set on vengeance may not obtain what he’d/she’d hoped for in court; etc. In this way, even the adversarially driven negotiator can be made an ally in the mediation process.
Principle #8: Identify the power/BATNA
The effective mediation advocate understands that a variety of power options are present in every mediation with some bringing about positive results and others causing increased alienation between counsel and/or the parties. Because every conflict is different, different power relationships may be at play. For example, often expert power—a mutually agreed to authoritative source of information or opinion–can be used to resolve the conflict. On other occasions, understanding that ecological power—the power to change surrounding circumstances or relationships—can be used effectively. Still, in other situations, normative power—the charisma or higher moral authority—can be employed successfully. Adversarial dispute resolution is typified by the exercise of coercive power with each party attempting to overwhelm the other with legal force. The successful mediation lawyer understands that different forms of power influence conflict and that the only the appropriate form of power is effective in bringing about a meaningful resolution.
Formulating and employing “BATNA” power is perhaps the most important use of negotiating power in reaching a settlement. (BATNA—Best Alternative to a Negotiated Agreement.) The power of BATNA is the ability to recognize the point as which it is not useful to continue negotiation. It is your “bottom line with a difference”—it is the rational choice for drawing a line in the sand, not simply an emotional one. It is identifying the rational point at which leaving the negotiating table is the best alternative because your other alternatives are at least as good if not better than accepting what the other side has proposed in negotiation. The successful mediating lawyer will take the client through the BATNA process examining the “ATNAs” and arriving at the best alternative to a negotiated settlement. Once recognizing these choices, both lawyer and client can enter into the mediation process truly knowing how long to stay and when to go and being able to thoughtfully assess settlement proposals and to respond rationally even in the face of difficult behavior by the opposing side.
Principle #9: Study the Diversity
Because of the very nature of the experience, parties in conflict often experience an obscuring effect upon their thinking. Even when disputants are thinking clearly, certain factors can come into play that impact conflict resolution. Among these factors are cultural differences, stereotypes, differences in worldviews, life experiences, values, and principles. Trial lawyers frequently use diversity as a weapon to improve their position or devalue the other side’s. It used to emphasize the differences in the parties’ positions, especially to exalt one position over the other. In the mediation context, diversity is understood as a force that may be causing incorrect assumptions or faulty perceptions of the other disputant’s motivations or actions. The successful mediating lawyer realizes the importance of recognizing the presence and influence of diversity factors in conflict. In so doing, he/she can avoid serious misjudgments and strategic errors which can lead to the compounding of the conflict.
By training and habit lawyers bring adversarial techniques into the collaborative conflict resolution setting of mediation—they attempt to employ trial rules on a game board constructed upon an entirely different conceptual framework and played with a different set of rules. Successful mediating lawyers have expanded their arsenal of conflict resolution techniques to include collaboration and cooperation—the essential skills for “winning” in mediation. The methodology described in “Conflict Diagnosis™” and the use of “9 Principles of Very Successful Mediating Lawyers” is an approach that can improve lawyer understanding and performance in mediation advocacy.
Conflict Diagnosis™ is a trademark of Steven L. Schwartz, ADRSolutions, LLC
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