d) Common Errors of Mediation Advocacy

Trial lawyers who are unaccustomed to being mediation

advocates often miss important arguments. Here is the list of
common errors.

Problem 1: Client’s Absence and Personality

It is difficult for an absent authority to experience the
dynamics of the session or understand everything that has been
shared. If that person’s input is critical to resolving the
case, find a way to get him or her there. The mediator will be
much better equipped to facilitate a resolution if he or she
can communicate directly with that person.
A client’s personality also can be a factor. A client who is
aggressive, critical, unforgiving, or self-righteous doesn’t
tend to be conciliatory.

Problem 2: Lawyer’s personality and Preparation

Transaction lawyers tend to be better mediation counsel. At a
minimum, parties should look for sensitive, flexible,
understanding people who will do their homework, no matter
their job experience. Good preparation makes for more and
better settlements. A lawyer who won’t prepare is the wrong
lawyer. Making the most of the mediation includes having a
command of the facts and the law, as well as a plan for
approaching the session.

Problem 3: Wrong mediator in the room

Some mediators bring nothing to the table. Some of them
determine their view of the case and urge the parties to
accept that view without exploring likely win-win
alternatives.
Masters of the process can render valuable services whether or
not they have substantive expertise. Parties want an
evaluative mediator, or someone who can cast meaningful lights
and shadows on the merits of the case and alternative
settlements. The wrong mediator may fail to get a settlement
another mediator might have finessed.

Problem 4: Wrong case

Almost every type of case, from antitrust or patent
infringement to unfair competition and employment disputes, is
a likely candidate for mediation. Occasionally, cases don’t
fit the mold, not because of the substance of the dispute, but
because one or both parties want to set a precedent.

Problem 5: Omitting client preparation

Lawyers should educate their clients about the process.
Clients need to know the answers to the types of questions the
mediator is likely to ask. At the same time, they need to
understand that the other party should be the focus of each
side’s presentation.
Topics to cover with the client:
 the difference between their interests and their legal
positions;
 the variety of options that might settle the case;
 the strengths and weaknesses of their case;
 objective independent standards of evaluation;
 the importance of apology and empathy.

Problem 6: Not letting a client open for herself

At least as often as not, letting the properly coached client
do most, or even all, of the opening and tell the story in her
own words works much better than lengthy openings by the
lawyer.
To prepare for mediation, rehearse answers to the following
questions, which the mediator is likely to ask:
 How do you feel about this dispute — Or about the other
party?
 What do you really want in the resolution of this
dispute?
 What are your expectations from a trial? Are they
realistic?
 What are the weaknesses in your case?
 What law or fact in your case would you like to change?
 What would it feel like to be in your adversary’s Shoes?
 What will the jury charge and interrogatories probably
be?
 What is the range of a verdict your way on liability?
 What are the likely settlement structures from among the
following possibilities: Terms, dollars, injunction,
service, performance, product, recision, apology, costs,
attorney fees, releases etc.?
 What constituency pressures burden the other party? Which
ones burden you?
Problem 7: Addressing the mediator instead of the other side
Most lawyers open the mediation with a statement directed at
the mediator, comparable to opening statements to a judge or
jury. Highly adversarial in tone, it overlooks the interests
of the other side that gave rise to the dispute.
If you want to make the other party sympathetic to your cause,
don’t hurt him.
For the same reason, plenary sessions should demonstrate your
client’s humanity, respect, warmth, apologies and sympathy.

Problem 8: Making the lawyer the center of the process

Unless the client is highly unappealing or inarticulate, the
client should be the center of the process. Prepare the client
to speak arid be spoken to by the mediator and the adversary.
He should be able to explain why he feels the way he does, why
he is or is not responsible, and why any damages he caused are
great or only peanuts. But he should also extend empathy to
the other party.

Problem 9: Failure to use advocacy tools effectively

A lawyer needs to prepare to have maximum persuasive impact.
Exhibits, charts, and copies of relevant cases or contracts
with key phrases highlighted can be valuable visual aids.

Problem 10: Timing mistakes

Get and give critical discovery, but don’t spend exorbitant
time in discovery and trial prep before seeking mediation.
Mediation can identify what’s truly necessary discovery and
avoid unnecessary discovery.

Problem 11: Failure to listen to the other side

Many lawyers and clients seem incapable of giving open-minded
attention to what the other side is saying. That could cost a
settlement.

Problem 12: Failure to identify perceptions motivations

Seek first to understand, only then to be understood. A lawyer
must brainstorm to determine the other party’s motivations and
perceptions.

Problem 13: Hurting, humiliating, treating, or commanding

A lawyer must not hurt, humiliate or ridicule the other folks.
All settlements are based upon trust to some degree. If the
lawyer or his party angers the other side, they won’t trust
them. The same can be said for threats, like a threat to get
the other lawyer’s license revoked for pursuing such a
frivolous cause, or for his grossly inaccurate pleadings.

Problem 14: The backwards step

The backwards step is a powerful card to play at the right
time-a walk away without yet walking out. But powerful devices
are also dangerous. There are few productive occasions to use
this one, and they tend to come late in mediation. A rule of
thumb: unless you’re an expert negotiator, don’t do it.

Problem 15: Too many people

Advisors—people to whom the decision- maker must display
respect and courtesy, people who feel that since they are
there they must put in their two bits worth-all delay a
mediation immeasurably.
Problem 16: Justifiable demands
A lawyer must ensure that his client’s demand or offer is
justified. Also, he must be prepared to explain how they
arrived at it. A proposal that is tied to something logical
carries more weight. And make sure the proposal is realistic.

Problem 17: Failure to truly close

Unless parties have strong reasons to “sleep on” their
agreement, to further evaluate the deal, or to check on
possibly forgotten details, it is better to get some sort of
enforceable contract written and signed before the parties
separate. Too often, when left to think overnight and draft
tomorrow, the parties think of new ideas that delay or prevent
closing.

Problem 18: Breaching a confidentiality

Sometimes parties to mediation unthinkingly, or irresponsibly,
disclose in open court information revealed confidentially in
mediation.
When information is highly sensitive, consider keeping it
confidential with the mediator. Or if revealed to the
adversary in mediation where the case did not settle, consider
moving before the trial begins for an order in limine to bind
both sides to the confidentiality agreement.

Problem 19: Lack of patience and perseverance

Advocates often grow impatient with the mediation process,
especially during the critical case evaluation stage that
needs to occur before or during the exchange of proposals. For
the negotiations to be meaningful, however, that groundwork
usually must be laid. Occasionally, parties are tempted to
jump to their “best and final” proposal early in the process
to see if they are wasting time. Be willing to engage in the
“dance” of the negotiation. Trying to “cut to the chase”
prematurely can be misleading to the other side.

Problem 20: Misunderstanding conflict

A dispute is a problem to be solved together, not a combat to
be won.