MEDIATION: HOW ATTORNEYS CAN MAKE IT WORK
by
Robin N. Amadei, J.D.
Common Ground Mediation and Coaching, LLC
303-604-1960 (o)
www.commongroundmediation.com (Website)
Conscientious attorneys are realizing that litigation, although sometimes appropriate, is not necessarily the dispute resolution mechanism of first choice when considering a client's best interests. Litigation requires substantial financial and emotional investment on the part of the client and is extremely time consuming. These detriments can be minimized by utilizing mediation at an early stage of case development. Indeed, Rule 2.1 of the Code of Professional Conduct states that: "In a matter involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution which might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought."
Therefore, the first step for an attorney when evaluating a client's case is to determine whether mediation is the appropriate dispute resolution mechanism. This decision should be made after discussing with the client his or her options based upon the type of case, the strengths and weaknesses of the case, appropriate case strategies that could be employed, the desire or the inevitability of a continuing relationship between the parties, etc. The client (and his or her attorney) must realize that mediation is a very different process from litigation. The objective of mediation is win/win as opposed to total vindication of one party's perspective to the detriment of the other party. Mediation is a process that empowers parties to reach their own decisions about how a case can be resolved. The merits of each party's position affect bargaining power during negotiations, but they do not limit the creativity that the parties may bring to the table to resolve the case.
Assuming that the client agrees that mediation is appropriate, the next step is to approach opposing counsel. A suggested way to approach counsel is to say, "Obviously we both feel that we have a strong case here. Maybe it is in both of our clients' interests to bring a neutral mediator in to determine if the case can be settled by our clients in an expeditious fashion." Or, an attorney can contact a mediator and the mediator can approach the other side. Of course, if the mediation is court ordered, approaching the other side would be less problematic from a strategic point of view. If opposing counsel is amenable to mediation, or if it is court-ordered, both attorneys need to discuss the type of mediator desired, cost sharing arrangements, scope of discovery prior to mediation, and other logistical details.
Once a mediation is scheduled, counsel needs to ensure that he or she adequately prepares for mediation. If the case requires a certain level of discovery in order to determine the scope of the case and its strengths and weaknesses, this should take place prior to the mediation. Then, the attorney should sit down with the client to discuss in greater detail the client's legal rights and potential liabilities given the circumstances of the case, ultimate objectives of the client, underlying interests that the client needs to have satisfied and settlement ranges. Also, counsel and client must discuss the strengths and weaknesses of the opposing side's case as well as analyze what the other side's underlying interests and concerns might be.
Then, counsel should prepare a case analysis for the mediator. The analysis should include a summary of the facts, the applicable law and the underlying interests of the client as the attorney perceives them. Also helpful would be a projected analysis of the other side's case. Such memo, of course, is held confidential by the mediator. Copies of relevant documents and pertinent case law should also be provided.
Both counsel and the mediator must make sure that all decisionmakers be present at the mediation. If parties only have limited authority to settle and other options become apparent at the session outside the scope of authority, the session could prove to be unsuccessful. Whether or not attorneys should attend the mediation session is situation-specific. In situations where the parties themselves feel comfortable in articulating their concerns and where they have been adequately coached by their attorneys, it may be appropriate for the clients to attend alone. In this situation it is advisable that each attorney be available by phone if questions come up. In cases where the stakes are high or where legal issues need to be articulated and fleshed out it is advisable that attorneys attend the session. Additionally, if one party's attorney plans to attend the session, it may be advisable for the other party's attorney to attend as well.
Counsel should advise the client that it is necessary to allocate sufficient time for the mediation. Everyone is busy and the tendency of parties to a mediation is to want to jump right into negotiations. Patience is a virtue. It is imperative to allow thorough opening statements by the parties. The expressions that come out during this part of the process lay the foundation for the interest-based negotiations that will take place later on.
It is important for counsel and mediator to work as a team. Therefore, it is the responsibility of both counsel and mediator to keep the channels of communication open. In a multi-session mediation, counsel must be apprized of the issues that are being discussed, tentative agreements that the parties are making, areas in which the client needs more legal advice, etc. If this communication is not forthcoming, clients could go down a primrose path towards settlement and then receive feedback from the attorney that the settlement may not be appropriate. This type of situation could be fatal to a mediation for obvious reasons.
Perhaps the most difficult aspect of mediation for lawyers is that attorneys do not have the same level of control that they do in litigation. While litigation is in the hands of attorneys and judges, mediation is the parties' process. Whether or not attorneys attend the mediation session, the parties usually present their cases and negotiate settlement. Of course this is all done under the guidance of their attorneys. Understandably, since this role is so different for counsel, it takes some adjustment. Rest assured, however, that attorneys are very much a part of the mediation process, albeit in a different role. Also, many of the negotiated settlements involve attorneys preparing additional contracts or otherwise providing additional legal services. It is crucial to the process that the attorneys support the mediation effort and that this support come through to the clients. This alone enhances the likelihood of settlement. Logically, if a client negotiates and settles his or her own case, this satisfaction carries over to the benefit of the attorney who so ably provided representation.
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Prepared by Robin N. Amadei, Common Ground Mediation Center, 303-604-1960. http://www.commongroundmediation.com. All rights reserved.