The recent trend toward only “meet and greet” joint sessions in mediation presents a serious challenge to lawyers in discharging one of their primary mediation functions: to advocate on behalf of their clients to get the best settlement option on the table.
Mediation was inserted into the civil litigation system in the early 1990s to address concerns that, even though 90% of litigated cases were being resolved by settlement, too often those settlements occurred at the last minute, “on the courthouse steps.” Because there was not at that time an existing “off-the-shelf” model or template for mediation of litigated cases, the initial process evolved to replicate and incorporate critical dynamics and factors of the litigation system, and one such factor was the exposure of clients to effective advocacy throughout the course of the litigation.
Advocacy by counsel is critical in certain disputes
This basic function of the lawyer in mediation — to negotiate and advocate for the client’s position — is important in all cases but is particularly crucial in certain types of disputes. In some tort cases and in many cases involving high stakes commercial disputes between large corporate entities, the settlement evaluation process is generally multilayered, involving multiple persons or committees, and the settlement goal or “authority” is thus often determined weeks in advance of the mediation session. While advocacy by counsel in such cases may work to move the parties closer and lay a foundation for future sessions, it is generally difficult to materially alter preset evaluations on the day of the session.
In many other types of disputes, however, advocacy during the mediation session is critical. For example, in disputes involving closely held corporations, partnerships, family businesses, trusts and estates, and in many construction and employment cases, the parties attending the mediation are generally the ultimate decision-makers. In these cases, it is not unusual for such attendees to have been intimately involved in the facts and circumstances out of which the dispute arose. They are often founders or owners of the business or enterprise who have strong personalities and firm opinions about the dispute, which they not infrequently characterize as involving a “matter of principle.” These attending stakeholders often profess that they would prefer to “pay the lawyers to go to court” rather than settle with the adverse party. However, importantly, notwithstanding the entrenched positions of the parties in such cases, the reality is that these matters are a subset of the 90% of cases that eventually resolve by settlement and, as indicated, experience has demonstrated that an important factor contributing to the ultimate resolution is the formal exposure of the parties over the course of the litigation to effective advocacy of counsel.
In the last 10 years or so, lawyers have indicated a reluctance to engage in a joint session with all parties present and with even brief and focused discussions or exchanges of positions. Common objecting comments include: “These parties cannot be in the same room together,” “Any exchange in a joint meeting will be counterproductive” and, “It will take all morning to get my client back to where they were if we have any interaction.” It is submitted that the concerns about the parties’ willingness or even ability to be in the same room with the adverse party, or concerns that any advocacy will be counterproductive, are not borne out in experience. Often, if a mediator, after reviewing the confidential submissions, suggests that an explanation of a party’s position would probably facilitate settlement, the response is often that the mediator can explain that position to the other side in private caucuses.
Professor Frank Sander, a pioneer of the mediation process, urged mediators and lawyers to be flexible and use the appropriate alternative dispute resolution tools and techniques but stressed that all such uses and efforts should be “user-friendly.” This is a critical element for both lawyers and mediators; the manner, nature and tone involved in the exchange of positions must be tailored to the situation and be executed in a productive manner. Mediation commentators, for example, often note that one of the benefits of mediation is the opportunity for lawyers to directly address the adverse party. Keeping professor Sander’s user-friendly admonition in mind, however, it is submitted that it is generally not effective advocacy for lawyers, with laser-focus and intensity, to directly address the adverse party. Good advocates, however, can use the opportunity of a joint meeting to make comments and arguments which, while intended for the decision-makers, are made somewhat obliquely, perhaps seemingly aimed at the mediator or adverse counsel or even to an imaginary judge or jury. Litigators in this era of fewer trials often underestimate the effect on adverse parties of well-presented, measured, focused and user-friendly advocacy. The parties on the other side of a lawsuit have generally, prior to mediation, only heard the issues discussed by their own counsel, and experience has shown that effective advocacy, presented in the semiformal setting of a court-sanctioned, or sometimes court-ordered, mediation has an effect similar to arguments presented in a traditional trial setting. Even very confident, often cynical or somewhat jaded parties are not immune to the sobering effects of a good advocate indicating in an effective manner what the judge or jury will hear and what relief or remedy the lawyer will seek.
‘You can explain our position’
It is not an effective substitute to request or expect, in lieu of such advocacy, for the mediator to carry the message or position to the other side. It takes too much time for even informed mediators to effectively communicate arguments and positions and, importantly, doing so often results in an undermining of the perception of the mediator’s neutrality. Conversely, when a mediator sits in on and facilitates an exchange or presentation of positions, he or she learns more, gets a more detailed and nuanced understanding of the issues and is then in a better position in private caucus to reference and build upon the arguments of counsel. A risk analysis that grows out of a discussion by counsel is more effective than if raised initially by the mediator.
Advocacy by lawyers in mediation need not be in a joint session with traditional “opening statements” or presentations. Rather, effective mediators can facilitate a detailed and controlled discussion of the pros and cons of respective positions. The pioneers of ADR envisioned a “multidoor courthouse” where some disputes would be addressed by mediation, others by early neutral evaluation, summary jury trials, nonbinding arbitration or any of the numerous and varied dispute resolution processes. A well-conducted joint session can combine and blend these various techniques into what amounts to a “mini-trial,” a forum for counsel to present views and positions on the facts and issues and an opportunity for the parties to weigh, consider and evaluate these positions and, ideally, reach a conclusion as to what available result or settlement best meets their key interests and objectives. The challenge for mediators is to conduct such a joint session in a manner which, while eliciting enough information to evaluate and examine positions, protects each side’s tactical, strategic and adversarial edge. If, for example, there are facts that the other side is unlikely to discover prior to trial, or if the discussion could give the other side the ability to prepare defenses or counter arguments to positions that might not have otherwise be developed, the joint discussion should not take place. The mediator’s primary rule should be to ensure that the mediation process does no harm to either party’s position. If the mediator discerns or if counsel decides that an exchange of positions in a joint session should not take place, other opportunities will generally arise during the mediation during which discrete issues can be discussed in a joint setting, or perhaps in a limited sidebar with selected parties.
Lawyers and mediators omitting the opportunity for a limited, directed, user-friendly exchange of positions end up omitting a critical factor that has historically contributed to the settlement of the vast majority of litigated cases. Effective mediation processes should include effective attorney advocacy.•
John Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding of and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.