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 different?
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.
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.
Lawyers 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)
Second, 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 about settlement.
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)
Finally, since mediators can influence parties’ beliefs about the acceptability of an offer, it is useful to convince a mediator that yours is the best argument
Mediation is not the same as litigation
Although legal 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:
Different styles 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 exclusively.
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.
Because evaluative 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 mediation.
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.
Professor John 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
Effective 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)
Preparation is 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 goals increases.
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 settlement. (34)
The evaluative 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.
Prepare your 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 are disfavored.
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
As Professor 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 adopt? Why?
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).
(2) 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, 2013)
(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 accompanying text.
(5) 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.
(9) 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 with competence.
(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 required.”
(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
(12) Of course, there is no inconsistency if these behaviors are condoned by the client.
(13) 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)
(15) 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)
(17) 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)
(19) “Distributive 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.
The fixed resource is not the entire price of the car. After all, the buyer expects to pay something. The pie is the difference between the buyer’s preferred price and the seller’s preferred price. The distributive negotiation has only one goal – dividing up that difference.
(20) 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
(22) 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)
(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)
(27) 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)
(29) Folger, J & Bush, R. Transformative Mediation and Third
Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13 MEDIATION
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)
(38) 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)