Mediation falls under the heading “alternative
dispute resolution” (ADR). Alternative to what? Litigation, of course. Yet the courts now frequently require
ADR as a pre-trial part of the litigation process. (1) The co-opting of ADR into
litigation has changed it. For
example, arbitration has become more formal, lengthier, and costlier (2) – so
much so that corporate counsel are moving away from it and toward mediation. (3)
Mediation too has changed. It once was asserted that lawyers and
their competitive, evaluative ways had no place in “real” mediation, (4) But
today’s market is filled with evaluative retired jurists and their
lawyer-mediator cousins, some of whom feature opinionated and aggressive
arm-twisting as necessary and desirable “reality checking.” (5) This is not necessarily better or worse
than “classic” facilitative mediation, but it certainly is different.
Like it or not, mediation is now a routine part of
daily legal practice. Ninety-eight
percent of Fortune 1000 survey respondents report using mediation within the
past three years (6) Lawyers are going to choose mediators, prepare for
mediation, advise on mediation, advocate in mediation, and perhaps (ironically)
litigate about mediation. But how should they advocate? Is lawyering in mediation the same
competitive, aggressive process in ADR as it is in litigation, or
There are those (7) who say that lawyers in
mediation should resemble potted plants, quietly existing in a corner while
their clients work things out.
There are even those who say that lawyers in mediation have a
responsibility to help craft an altruistic solution beneficial to everyone, not
just their clients.(8) But while these positions are neither practical nor
Ethical problems with
abandoning advocacy in mediation
Benefiting all and the potted plant model of
representation in mediation (polite silence and interested observation) may
work if the conflict has no legal underpinnings (9). But once lawyers are
involved, “help everyone” altruism and “potted plant” inactivity pose ethical
problems. Simply put, retained lawyers
are not free to behave passively, or as is best for all. They must ethically achieve
their clients’ goals in their clients’ ways.
have duties of competent (10) and zealous (11) advocacy. Those duties are inconsistent
either with behaving as passively or with behaving altruistically on behalf of
all. (12) Lawyers also have a duty of loyalty – the duty to put a client’s interests
first. (13) If an “altruistic” settlement is incongruent with the client’s goals,
it violates professional duties.
The duty to use ADR
For litigators, ADR presents a dual paradox: First, the adversarial, competitive,
aggressive attitude expected of them during litigation could reduce the
likelihood of settlement (15), which will be the mode of resolution in over 99%
of litigated cases. (16)
though they almost never go to trial, litigation counsel will naturally see
trial as the favored resolution. It’s what they train for. It is how they identify themselves –
“I’m a trial lawyer.” Naturally, they will be confident of success. Like others, lawyers frequently interpret
available evidence to support their positions. They also over-predict their
chance of winning at trial. (17)
But optimistic trial specialist
or not, a lawyer’s duty of competence means that he or she must advise using
ADR when it is the best path to the client’s goals, and must advocate competently
when acting for a client in ADR. Though
Professor Carrie Menkel-Meadow has called “mediation advocacy” oxymoronic. (18),
it is really a positive duty.
The role of
advocacy in mediation
Partisan legal argument
does have a place in mediation.
Many mediations take place “in the shadow of the courthouse.” That is, they involve litigation or
claims that could be reduced to litigation. At times, the biggest barrier to
settlement is disagreement about the law, Counsel look to a seasoned evaluative
mediator for a second opinion, which is based on a mix of strenuous advocacy
and the neutral’s experience That opinion informs later decisions
Clients also make decisions
based on what they feel are their rights. The perceived
strength or weakness of their legal claims is directly related to clients’
willingness to settle and their demands.
To the extent that advocacy can change those perceptions in a client’s
favor, it has a proper place in mediation.
Some advocacy is
simply an excuse for making progress. The negotiation process is a ritual
dance. It cannot be shortcut without negatively impacting the result. Distributive
negotiation (19) is predictable (20). Negotiations will usually conclude, after
mutual concessions between the disputants, near the midpoint of the first two reasonable
offers. (21) But conceding without some reason is seen as “weak,” even though
the end result is apparent. Advocacy can trigger an appropriate concession,
continuing the cycle of give and take between parties without which
negotiations will stop. (22)
mediators can influence parties’ beliefs about the acceptability of an offer,
it is useful to convince a mediator that yours is the best argument
is not the same as litigation
advocacy has its place in mediation, it is a tool, not the whole toolbox. The ultimate purpose of litigation is inherently
competitive: to lay one’s case before a judge or jury and win a favorable
decision over one’s adversary.
In contrast, the ultimate
purpose of mediation is to resolve a dispute without litigation. And while the process of resolution may be competitive,
it need not be. Because mediation
is different from litigation, effective representation changes too:
require different methods
There are three main
styles of mediation, named for what the mediator does. Know ahead of time which
style your mediator favors. But understand that few mediators use one style
The first style is
evaluative. This model is popular in ongoing litigation, The mediator (often a retired judge or
experienced lawyer) is an involved authority figure. He or she weighs the strengths and weaknesses of each party’s
position, giving opinions as to appropriate outcomes and highlighting the risks
and costs of continuing the dispute.
mediators predictively “judge cases” to determine appropriate resolutions, the
process is often seen as a dry run for trial. Practically, this means that argumentative advocacy is
inevitable. Failure to master the facts, marshal one’s evidence and formulate
realistic goals is likely to spell poor results at an evaluative
Facilitative mediators disclaim authority, which belongs to the
disputants, and refrain from expressing preferences or opinions about the
dispute. (23) The emphasis is on the disputants’ ability to do their own thinking and creative problem-solving. (24).The
mediator explains the mediation process, establishes productive ground
rules, (25) asks questions, guides the
conversation, promotes communication, and helps develop alternatives. (26) Facilitative
mediators usually encourage a problem-solving approach based on underlying needs,
or “interests.” Advocates can still be involved, but an adversarial tone will
be criticized as unproductive.(27) Instead, even-toned discussion, seeking
others’ input, brainstorming, and respect for others’ needs are the norm.
Like facilitative mediators, transformative mediators are
not authority figures. Unlike
facilitative mediators, they insist that the process is not primarily directed
toward resolving a dispute. The aims of the transformative mediator are
restoring parties’ confidence and sense of control, creating clarity about
goals, options, preferences and risks
and promoting acknowledgment and empathy for others’ circumstances. Dispute
resolution is a byproduct of these conditions, not an aim.
The different focus
of the transformative mediator means that the process is one of exploration,
encouragement and validation. The goal
of the mediation is self-improvement, not settlement. The parties, not the
neutral or counsel are the proper source of alternatives and solutions.
Lande says transformative practitioners do push for settlement “[T]ransformative mediators try, gently but firmly, to help
the principals in a dispute responsibly exercise their decision-making
authority.” (28) But Bush and Folger state a session is a success “if new insights are reached, if choices are clarified or if new
understandings of each other’s views are achieved.”(29)
Before the mediation
representation starts well before the mediation. No matter which school the mediator adheres to, the client
should be thoroughly versed in the upcoming process. Familiarity reduces fear.
(30) Since fearful negotiators often make steep concessions and settle too
quickly, (31) taking the time to make the client comfortable with the process
is well worth the effort. Roselle
Wisler of Arizona State University has found that parties who are more prepared
feel less pressured to settle than do parties who are less prepared. Prepared
parties were more likely to settle than their unprepared counterparts. (32)
also the key to fearless and effective advocacy. Go over the negotiation
history. What has been offered and
demanded? That will give you some idea of your boundaries – the “size of the
dance floor.” Expect to make
multiple concessions, and prepare your client accordingly. (33)
Know your client’s
needs, then help her decide on concrete, realistic goals. Monetary recovery is
often central, but not exclusive. Perhaps there is a need to maintain relationships,
or settle immediately. As counsel,
you need to know. Ask about
non-monetary aims. And remember that things change, Make sure to re-check the accuracy
of your information as the mediation approaches.
If the client has
non-distributive aims, the task is similar – preparation is still
important. The difference is in
developing alternatives. Counsel
should discover underlying interests, ask the client to rank their relative
importance, brainstorm more than one acceptable solution, and determine what
the client cannot live without. Trial will not accomplish most non-distributive
aims. So settlement becomes more important as the priority of non-distributive
Get detailed information from the client. Know
not only where clients want to end up, but what concessions they are (and are
not) willing to make. Think about what the mediator or the opponent is likely
to do and discuss the appropriate reaction, Boost client confidence (and
resistance to undue pressure) by developing alternatives to immediate
mediator will take your case apart, with the encouragement of your opponent. Do
that pre-emptively. Be brutally
honest with yourself. Can you establish liability? What are your provable damages? Is your client
credible? Given the risk of loss and the process costs of trial, what is the
real value of the claim? Use this
analysis not as a reason for despair, but as a tool for determining reasonable
settlement demands, and countering likely arguments.
Is there something
you can do to strengthen your case? If possible, do it before mediation, That
will be one less weakness to wrestle with at the session. A stronger case means
the evaluative mediator will be pushing the other side that much harder to
settle in your favor.
client for the possibility that she will have to speak. While lawyers are the accepted conduit
for information in evaluative mediation settings, in other situations lawyers
By definition, a
facilitative mediator will not be challenging your position. A transformative mediator is also
unlikely to do so. But that
doesn’t mean the other disputants won’t.
So the need for preparation remains the same.
At the mediation
Kristen Blankley points out, mediation is a rare opportunity to interact
directly with the other disputants. (35) It is also an opportunity to begin
building a useful negotiating relationship, from the neutral’s opening
statement on. Relationship
building — sincerely empathizing with an injured plaintiff, or recognizing
that while a defendant may be liable he is not evil, adds significantly to the
likelihood of favorable settlement.(36) Likewise, close observation of the
mediator can yield cues about what will be convincing to him or her (37).
Do what you can to
avoid arousing negative emotions like anger, fear, or anxiety during a
session. Anger makes people
stubborn, overconfident and competitive.
Fear makes them pessimistic and hopeless – ready to concede too much
(38) or abandon talks altogether.(39) Anxiety makes them conservative and
defensive – ready to fight what they see as exploitation, but not ready to give
much. (40) None of these states is
conducive to settlement,
Use the mediator
to your advantage. Presenting a solid settlement proposal through the mediator can eliminate “reactive devaluation” – the
psychological tendency to distrust or reject information because it comes from
an opponent. (41)
If your client is being unreasonable, have
the mediator talk to them, so that
you do not appear to be at cross-purposes with your client. As Professor L.
Randolph Lowry points out, mediation presents counsel with an opportunity to
resolve their differences with clients who overvalue their claims or refuse to
see the value in settlement. The mediator’s clearly expressed contrary opinion
can be a powerful tool when working with an intransigent client (42) Similarly,
when the client wants to make huge leaps, or demand too much, let the mediator
act as negotiation coach, explaining the likely negative results.
Finally, and most
importantly, be alert for opportunities.
Mediation is dynamic, and even the most careful planner can be surprised.
Does the plaintiff seem more interested in an apology than in money? Is the
defendant open to payment over time? No matter how the session starts, things
will change as the day goes on, and you must adapt.
Testing your understanding
1. Assume you are a mediator in a contentious real estate
dispute. What style would you
2. Does your answer to Question 1 vary with the type of
dispute? Why or why not?
3. Assume you are an attorney representing a client in a litigated
case concerning a longtime partnership. The case is ordered to mediation.
- a. What kind of mediator would you look for? Why?
- b. The mediator is evaluative. Generally, how would you
conduct yourself? Why?
- c. The mediator is facilitative. Generally, how would you
conduct yourself? Why?
- d. The mediator is transformative. Generally, how would you
conduct yourself? Why?
4. Now assume the dispute has not yet gone to litigation. Respond to subparts (a)-(d) above.
5. How would you prepare your client in each of the situations
in Question 3? Why?
6. Now assume the dispute in Question 3 has not yet gone to
litigation. Do your answers regarding preparation change? Why or why not?
7. How would you select a mediator? Discuss.
8. What part should adversarial advocacy play in the mediation
of a litigated case?
9. What part should adversarial advocacy play in the mediation
of a non-litigated case?
10. Assume your
mediator is a non-lawyer. Do your answers to Question (s) 8 and/or 9 change?
Why or why not?
11. Would your
preparation for the situations in Question 3 change if your client was fearful?
Why or why not?
(1) Professor John Lande calls this
“liti-mediation.” Lande, J. “Lawyers’
Routine Participation Directs Shape of “Liti-Mediation” 16
Alternatives to the High Cost of
Litigation 53 (1998); Participation in ADR is frequently mandatory in
currently litigated cases. See,
e.g. Local Rule 16-15, United States District Court, Central District of CA. http://www.cacd.uscourts.gov/attorneys/adr
(last visited May 18, 2013).
Stipanowich, T. J, “The New Litigation” (2010) http://illinoislawreview.org/wp-content/ilr-content/articles/2010/1/Stipanowich.pdf at fn. 38 and accompanying text. (last visited May 18,
(3) Stipanowich, T. J. and Lamare, J. R.,” Living
with ‘ADR’: Evolving Perceptions and Use of Mediation, Arbitration and Conflict
Management in Fortune 1,000 Corporations,” at Table H. Harvard Negotiation Law Review, Forthcoming; Pepperdine University
Legal Studies Research Paper No. 2013/16. (February 19, 2013) Available at
SSRN: http://ssrn.com/abstract=2221471 or http://dx.doi.org/10.2139/ssrn.2221471,
(4) Sternlight, Jean R. “Lawyers’ Representation of Clients in
Mediation: Using Economics and Psychology to Structure Advocacy in a Non-adversarial
Setting.” Ohio St. J. on Disp. Resol. 14 (1998): 269 at fn, 1 and
Stipanowich, T. J. and Lamare, J. R.,supra, fn 3,,at
fn 110 and accompanying text (last visited May 18, 2013).
(6) Stipanowich, T. J. and Lamare, J. R.,supra, fn
3, at Table E.
(7) Sternlight, supra
fn. 4, nn. 77-78 and accompanying text.
(8) Sternlight, supra
fn. 4, nn. 31-35 and accompanying
text. Client expectations are against
altruism. Given the gladiatorial model of American jurisprudence, we think of
our lawyers as warriors on “our” side, not as benevolent consultants. This
makes altruistic representation problematic at best and traitorous at worst.
This assumes that the client is articulate, organized, and knows what she
wants. Even then, it may not forward client’s goals
(10) See section 1-1 of the American Bar Association’s Model Code of
Professional Responsibility. See also California Rule of Professional
Responsibility 3-110, which provides:
“(A) A member shall
not intentionally, recklessly, or repeatedly fail to perform legal services
(B) For purposes of this rule, “competence” in any
legal service shall mean to apply the 1) diligence, 2) learning and skill, and
3) mental, emotional, and physical ability reasonably necessary for the
performance of such service.
(C) If a member does not have sufficient learning and skill
when the legal service is undertaken, the member may nonetheless perform such
services competently by 1) associating with or, where appropriate,
professionally consulting another lawyer reasonably believed to be competent,
or 2) by acquiring sufficient learning and skill before performance is
(11) Section 7-1 of
the American Bar Association’s Model Code of Professional Responsibility provides: “The duty
of a lawyer, both to his client and to the legal system, is to represent his
client zealously within the bounds of the law.” California courts agree.
See Munoz v. Davis (1983) 141 Cal. App. 3d 420, at 430
Of course, there is no inconsistency if these behaviors are condoned by the
Peck, E. R.,” California Joan And The
Temple Of Loyalty: Watch Out For Pitfalls When Both Parties Are Your Clients.” California Bar Journal (Dec. 1998) http://archive.calbar.ca.gov/calbar/2cbj/98dec/mclestdy.htm (last
visited May 17, 2013)
(14) Remember, the
client, not the lawyer, sets the goals of settlement. The client may both
prioritize the goals and select the means of achieving them – though choosing a
method is often left to the lawyer, who presumably has greater expertise. See American Bar Association, “Ethical
Guidelines for Settlement Negotiators,” pp. 7-15 http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/settlementnegotiations.authcheckdam.pdf (last visited May 17, 2013)
Herr. D. F., Annotated Manual for Complex Litigation,
section 13:13 (updated May 2011).
(16) Yale Law School Professor John L
Langbein states that only 0.6% of state cases go to trial. Langbein, J. H.122 Yale Law Journal 522, 524 (2012);
available at http://yalelawjournal.org/images/pdfs/1121.pdf. (last
visited May 18, 2013)
See Peters, D. IT TAKES TWO TO TANGO, AND TO MEDIATE:
LEGAL CULTURAL AND OTHER FACTORS INFLUENCING UNITED STATES AND LATIN AMERICAN
LAWYERS’ RESISTANCE TO MEDIATING COMMERCIAL DISPUTES, 9 Rich. J. Glob. L. Bus. 381, 402. (last visited May 18, 2013)l
(18) Menkel-Meadow, C. “Ethics in ADR
Representation: A Roadmap of Critical Issues,” Dispute Resolution Magazine (Winter 1997) http://class.lls.edu/fall2006/altdispute-horn/documents/HornFirstReadingDR-EthicsinADRRepresentation97.pdf (last
visited May 19, 2013)
negotiations” are competitive, and focus on getting the biggest share of a
fixed resource, sometimes referred to as “the pie.” Game theory calls such
negotiations a “zero-sum” game. That is, more of the pie for A means
proportionately less for B. The
sale of a used car is classic distributive situation.
fixed resource is not the entire price of the car. After all, the buyer expects to pay something. The pie is
between the buyer’s preferred price and the seller’s preferred price. The
distributive negotiation has only one goal – dividing up that difference.
Negotiation theory is relevant because mediation is simply negotiation with the
aid of a neutral third party. See, e.g. Cal Evid. Code 1115(a)
(21) Guasco, M, Robinson, P.R. PRINCIPLES OF
NEGOTIATION: STRATEGIES, TACTICS, TECHNIQUES TO REACH AGREEMENT (2007) at p. 41
Soye, S.”The Negotiation Dance: Five Reasons Not to Sit Out.” http://www.adrtimes.com/articles/2011/10/20/the-negotiation-dance.html (last visited May 28, 2013)
(23) Lande, John “Toward More Sophisticated Mediation Theory” 2000 J. Disp. Resolution 321 at 322
(24) Id. at 325
(25) Typical ground rules are: being civil, being prepared, speaking in turn, using the time to work toward settlement, not blaming or attacking, focusing on what might work instead of on what hasn’t worked, and listening to others.
(26) Mayer, B. “Facilitative Mediation,” pp.
30-31, in Folger, J., Milne, A., and P. Salem (eds.) Divorce and Family Mediation (2004)
Whether it is actually unproductive depends on the circumstances. In distributive negotiations,
competitive disputants do better when paired with cooperative ones. But bilaterally cooperative
negotiations maximize joint returns. See Craver, C B., Negotiation Styles: The Impact on Bargaining Transactions. Journal of
Dispute Resolution, Vol. 48, April 2003; GWU Legal Studies Research Paper No.
328; GWU Law School Public Law Research Paper No. 328. Available at SSRN: http://ssrn.com/abstract=1003448 Craver notes that the most effective competitive
bargainers try to maximize joint returns while claiming the largest portion
possible for their principal. (last visited May 29, 2013)
(28) Lande, J. “HOW WILL LAWYERING AND MEDIATION PRACTICES TRANSFORM EACH
OTHER?” 24 Fla. St. Univ. 839 at 860 (1997)
Folger, J & Bush, R. Transformative
Mediation and Third
Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13
Q. 263 (1996)
(30) Cao, H. H, Bing Han, David Hirshfelder and Harold H. Zhang “Fear of the Unknown: Familiarity and Economic Decisions” 15 (1) Review of Finance (2011), pp. 153-206.
(31) Van Soye, S. “Working with Emotions for the Real Estate Negotiator, Part One: The Impact of Emotions.” http://www.adrtimes.com/articles/2011/11/3/working-with-emotions-for-the-real-estate-negotiator.html at fn. 37 (last visited May 25, 2013}
(32) Wissler, R.L. Representation in
Mediation: What We Know From Empirical Research, 37 Fordham Urb. L. J. 419 (2010)
(33) Van Soye, S.”The Negotiation Dance: Five Reasons
Not to Sit Out.” http://www.adrtimes.com/articles/2011/10/20/the-negotiation-dance.html (last visited May 28, 2013)
(34) Van Soye, S. “Working with Emotions for the Real Estate Negotiator, Part Three: Dealing with Counterproductive Emotions, at fn. 22 http://www.adrtimes.com/articles/2011/10/20/working-with-emotions-for-the-real-estate-negotiator.html (last visited May 25, 2013}
(35) Blankley, K, 10 Things I Wish the Mediator Asked Me…None of Which are ‘What is Your Bottom Line?’ (April 4, 2012). Nebraska Mediation Association’s Mediator Minute, 2012. Available at SSRN: http://ssrn.com/abstract=2034491 (last visited May 28, 2013}
(36) Berman, L. J. “The Advocate’s Opening Getting More for a Client in Mediation Starts with the Opening Statement” http://www.mediationtools.com/articles/advopening.html(last visited May 28, 2013)
(37) Berman, L. J. Mediators’ Opening Statements Offer Insights for Successful Results.” http://www.americaninstituteofmediation.com/pg66.cfm(last visited May 28, 2013)
A disputant who gives too much in settlement will be less likely to comply in
the future. See Menel, K. E. “Judging the fairness of mediation: A
critical framework.” Vol 9 No 1 Conflict
Resolution Quarterly pp. 3-20
(39) See fn. 34, supra
(40) Shapiro, D. and Goldman, B. THE PSYCHOLOGY OF NEGOTIATIONS IN THE 21ST CENTURY WORKPLACE: NEW CHALLENGES AND NEW SOLUTIONS (2012), at pp. 163-164
(41) Lowry, L. R.. Evaluative Mediation,” pp.77-78, in Folger, J., Milne, A., and P. Salem, supra fn 26
(42) Ross, L. “Reactive Devaluation in Negotiation and Conflict Resolution” pp. 28-29 https://prod.law.stanford.edu/sites/default/files/child page/370999/doc/slspublic/Reactive%20Devaluation.pdf (last visited May 31, 2013)