The Art of Mediation Representation: Helping Clients Make Good Decisions

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Deliver Excellent Client Service

Provide Two Complementary Services: Attorneys counsel clients and also represent them in communicating with the mediators and the other side.

Help Clients Make Good Decisions: Counseling is especially important in helping
clients become knowledgeable, confident, and assertive so they can make good
decisions in their cases.

Act as a Quasi-Mediator: Attorneys can help clients realistically understand the
other side’s perspectives, enlist the mediators’ help, and encourage the other side to adjust their positions.

Introduction

These days, attorneys regularly represent clients in mediation. They are not
potted plants in this complex process, and they need guidance about how to best serve their clients.

Dwight Golann captures the nature of mediation representation in his book,
Sharing A Mediator’s Power: Effective Advocacy in Settlement. He describes how
savvy attorneys recognize the potential to “share” – and actually take advantage of – mediators’ powers:

“Advocates can use mediation to pursue either competitive or cooperative
strategies. An advocate can make an extreme opening offer, for instance,
knowing the neutral will work to “scrape the defendant off the ceiling.” Or
a defendant can ask a mediator to explore creative options, such as
repairing a ruptured relationship. Lawyers can also pursue a dual
strategy, making money offers while asking the neutral to explore
business issues.”

The book highlights many techniques for attorneys, including chapters on
“shaping” the mediation, focusing discussion, exchanging information, addressing emotional issues, influencing the bargaining, implementing a cooperative approach, using or responding to competitive tactics, narrowing disagreements over legal issues, and breaking impasse.

Attorneys as Quasi-Mediators

Attorneys representing clients in mediation perform two related functions. They
counsel clients and also represent them in communicating with the mediators and the other side. Communications to clients generally go through their attorneys, who explain to clients the counterparts’ and mediators’ perspectives and help clients develop their strategies. Attorneys also communicate with counterparts and mediators on behalf of their clients.

Thus, effectively, they are “quasi-mediators.” They tailor their techniques to their
clients’ preferences and the other side’s approach. If the other side acts badly or takes unreasonable positions, these attorneys vigorously advocate their clients’ interests. But whenever appropriate, they look for opportunities to cooperate and reach reasonable agreements.

The chart on the following page lists numerous tasks that attorneys often
perform by before, during, and after mediation sessions. Of course, attorneys do not necessarily perform all the tasks or do so in an exemplary manner. The chart
summarizes key elements of the Real Practice System of Menus of Checklists for
Attorneys in Mediation, which parallels the Menus of Checklists of Menus for Mediators.

There is a great deal of overlap between the two sets of checklists. Both focus
on analyzing clients’ disputes and helping them make decisions, though attorneys
perform more of these activities before mediation sessions than mediators do.
The major difference between the two menus of checklists involve the different
ethical rules for attorneys and mediators. This reflects the differences in their roles as representatives committed solely to their clients or neutrals assisting all parties in a case.

Important Procedures Before Mediation Sessions

Preparation before mediation sessions can make a major difference in mediation
processes and outcomes. Empirical research has shown that attorneys and parties
often are not well-prepared before mediation sessions.

When parties have attorneys, mediations in the US generally occur after parties retain the attorneys. This period enables attorneys and parties to prepare effectively.

Before mediators are retained, attorneys and clients presumably have discussed
the clients’ interests and how to best advance them. Attorneys should help their clients decide whether to use mediation or another dispute resolution process (if they have a choice), learn information obtained from their counterparts, understand the applicable law, determine how the mediation process would work in their case, identify and prioritize their goals in mediation, anticipate their counterparts’ perspectives and tactics, consider the likely outcomes if the parties do not reach agreement, and plan possible mediation strategies.

Based on pre-session conversations between attorneys and clients, attorneys for
opposing sides may talk with each other about the mediation process and decide to use particular mediators. The choice of mediators clearly can affect the process and outcome of mediation.

Although mediators sometimes provide evaluative assistance during mediation
sessions, parties generally need the more thorough advice that they can get only from their attorneys. This includes assessments of the strengths and weaknesses of cases, predictions of court outcomes, and development of negotiation offers. Mediators can add value based on what they learn in private conversations with the other side, but this is no substitute for good legal advice from clients’ attorneys.

Attorneys’ counseling of their clients is especially important in helping them
become knowledgeable, confident, and assertive so they can make good decisions in their cases.

Attorneys’ Approach During Mediation Sessions

Attorneys may be adversarial and/or cooperative during mediation sessions.
Taking an adversarial approach is the default behavior for some attorneys, and some have a hard time shifting from the adversarial approach they use in court. Sometimes they act uncooperatively to demonstrate to their clients that they are vigorously advocating for them.

Fortunately, many attorneys are cooperative during mediation sessions,
recognizing that this is the best way to advance their clients’ interests. They act as
counselors to their clients, not only as advocates. They help their clients realistically understand the other side’s perspectives, enlist the mediators’ help, and encourage the other side to adjust their positions.

Clients may find mediation sessions to be very stressful and thus it may be hard
to make decisions. For one thing, they are in a conflict that they haven’t been able to resolve. They are engaged with the other side, which may be represented by a hostile attorney who (they may believe) misrepresents the facts and makes unreasonable demands.

Sometimes, mediation sessions last well into the evening, and clients may suffer
from decision fatigue. Moreover, clients may need to make a series of difficult
decisions in a short time during mediation sessions. They may be concerned about the amount of time and money invested in the mediation and prospect of continued litigation.

Attorneys should use pre-session conversations to develop good relationships
with mediators to advance clients’ interests during mediation sessions. When
mediators and attorneys have a good relationship, mediators can help them
communicate more productively with the other side than they could do directly.

For example, attorneys can enlist mediators to:

• Explain the other party’s perceptions and reasons for their positions
• Identify information that might change both sides’ perspectives
• Arrange a “hot tub” for opposing parties’ experts to talk with each other
• Look for opportunities to create value
• Identify stakeholders who might influence the other side
• Break issues into small pieces that can be negotiated separately
• Consider “package agreements” combining multiple elements

Attorneys can effectively represent their clients by focusing on the other side’s
risks and intangible costs, not merely exchange claims about what would happen at trial. Through private conversations with the mediator, they can communicate those risks and costs to the other side to induce them to make concessions.
By focusing on all the elements of both parties’ bottom lines – not only the
expected court outcomes – attorneys and mediators can help parties advance their highest priority interests.

Teaching Mediation Representation

Unfortunately, US law schools generally don’t prepare students to represent
clients in mediation. About 90% of the mediation curriculum focuses on neutral
mediation services, and it devotes only a tiny proportion of instruction on how to
represent clients.

Law professors teaching dispute resolution generally treat neutral and
representation perspectives as if they are diametrically opposed. In reality, they are more like two sides of the same coin, as practitioners in both roles use many of the same skills in the process of promoting agreement.

New graduates represent clients in mediation much more frequently than they
mediate. Indeed, most attorneys who eventually develop substantial mediation
practices don’t do so for quite a while after they graduate.

Law students desperately need more training in client counseling, which is a
major part of mediation representation. A study of new lawyers and supervisors of new lawyers found that new lawyers are “woefully unprepared” to work with clients. It found that new lawyers often lack the ability to see the “big picture” in client matters. New lawyers need more training in three sets of abilities to work effectively with clients relevant to representation in mediation including the ability to:

• Gain a client’s trust, gather relevant facts, and identify the client’s goals.
• Communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy.
• Manage client expectations, break bad news, and cope with difficult clients.

Faculty teaching mediation don’t have to choose between teaching students how
to mediate or how to represent clients in mediation. They can incorporate both in a single course. That would enrich students’ learning by highlighting the similarities and differences in perspectives and roles of neutrals and representatives.

Texts are available to teach mediation representation – which also provide
valuable guidance about performing in a neutral role. See the texts listed below.

Conclusion

Representation in mediation is a poor step-child of the mediation field. We
generally focus much more on the neutral’s role. Obviously, mediators play an
invaluable role in handling disputes, especially when parties and attorneys have
difficulty negotiating without mediators.

Attorneys representing clients in mediation can play a critically important role,
and their actions can make a big difference in the process and outcome. Attorneys’
counseling clients and preparing them for mediation sessions is especially helpful so they can make good decisions during the sessions.

Too many attorneys are not well trained to represent clients in mediation. Law
schools, especially mediation instructors, should do a better job of preparing students for this important role that they frequently will undertake soon after graduation.

Professional associations should regularly provide continuing education about
mediation representation.

For Further Reading

Harold I. Abramson, Mediation Representation: Advocating as a Problem-Solver
(Aspen Publishing, 3rd ed. 2013).

Dwight Golann, Sharing A Mediator’s Power: Effective Advocacy in Settlement
(American Bar Association, 2013).

Dwight Golann & Jay Folberg, Mediation: The Role of Advocate and Neutral (Aspen
Publishing, 4th ed. 2021).

G. Nicholas Herman, Advocacy in Negotiation and Mediation: A Practical Approach (Aspen Publishing, 2021).

Michaela Keet, Heather Heavin & John Lande, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (American Bar Association, 2020).

Bennett G. Picker & Conna Weiner, Commercial Mediation Practice Guide: A Practical Handbook for Lawyers and their Business Clients (American Bar Association, 3rd ed. 2023).

Spencer M. Punnett, Representing Clients in Mediation (American Bar Association, 2013).

Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making (American Bar Association, 2nd ed. 2021).