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To Succeed at Mediation, You Must Let Your Client Speak
from THE PRACTITIONER by NORMAN BRAND

There was a demonstration at the American Bar Association meeting in New York City. I'm not talking about the one where various colorful folks stood outside the hotels and argued for eliminating lawyers but another I found far more instructive, a mock mediation put on by the Labor and Employment Law Section to illustrate the advantages and pitfalls of ADR.

Two highly experienced litigators represented the "clients": a female employee who alleged sexual harassment and the company where she had been employed. A well-known and respected former judge, who had been mediating for about nine months, presided. The mediation was unsuccessful (it was obviously planned that way, to allow a mock trial on damages) but it provided many useful lessons for the audience.

The judge conducted the mediation like a settlement conference. He began by explaining the process, trying to create a cordial atmosphere and focus the parties on settlement. He spoke most directly to the lawyers and asked each of them for their "position" in the case, both of whom did a superb job of arguing the strength of their position. In separate caucuses the judge explored with each lawyer the weaknesses of their case and heard each explain how what the judge might perceive as a weakness was really not going to be a problem at trial. In each separate caucus the judge allowed the clients to speak. Before the plaintiff could speak, the judge asked her lawyer to tell him more, saying, "At some point your client will have a chance to vent her spleen."

After the demonstration the panelists explained why they thought mediation would not have been successful if this were an actual case. Four comments stood out. The defendant's lawyer said he wanted the mediator to focus on moving opposing counsel: Otherwise, he was satisfied he could accomplish as much in a telephone negotiation. The judge allowed as how mediation might be successful in a family law matter, where there were many emotional issues, but was unlikely to be successful here. The plaintiff's lawyer talked about how she wanted to show a jury her client's pain, because pain translated into money. Finally, one of the lawyers told how a mediator had asked to talk directly to the client, without the lawyer being present. Part of the audience laughed nervously, as though they had been told an off-color joke and were unsure whether laughter was appropriate. But the lawyer assured them the mediator had been rebuffed and the client protected from potentially damaging the case.

I began to wonder whether the other demonstrators - the ones outside the hotel - were right. There was no chance of this case being settled at mediation because the lawyers (including the mediator) regarded this as "their" case. But mediation must be a "client-centered" process if it is to work. The plaintiff's motives in bringing the case and the defendant's reasons for refusing to settle are the key considerations. The mediator must hear those considerations directly from the clients. If that occurs, the mediator can often help remove impediments to resolution. In the mock mediation, however, the advocates appeared to have forgotten that clients are not obliged to continue a case because their lawyer thinks they can get a better deal down the road.

A more detailed look at the mock mediation can show how a client-centered approach might have yielded a different result. First, the mediator began by focusing on the lawyers and their legal positions. Each client heard a compelling argument, complete with legal terminology that may or may not have been comprehensible. The advocates got all the mediator's attention; the clients were spectators.

It is important for the mediator to become conversant with the dispute. Doing it through extensive presentations by the advocates at a joint meeting may hinder, rather than advance, resolution. The clients are confirmed in their opinion they will prevail, and the mediator is left with the task of later undercutting that confidence in a separate caucus. Since the confidence was expressed by the advocate, that puts the mediator in the position of challenging the advocate in front of the client. While a good mediator can offer the advocate many graceful ways of retreating from certainty, the situation is unnecessarily awkward and confrontational.

Second, in the mock mediation the plaintiff's expression of her view — albeit potentially emotionally charged — was characterized as "venting her spleen." I am sure the mediator had no intention of demeaning the plaintiff but that is precisely what that comment did. It expressed the implicit view that the only reality in the case was the legal position expressed by each advocate. Anything else was emotional surplus.

The plaintiff's lawyer expressed the view that her client's pain was convertible into dollars. There seemed to be no recognition that clients experience the pain alone while lawyers share only the dollars . The plaintiff might prefer the present discounted value of her pain, while the defendant might be happy to avoid the continuing business disruption of a lawsuit and the uncertainty associated with a jury trial. This mediation might have been more successful if the clients, the ultimate decision makers, had worked more directly with the mediator.

Third, the view expressed by defendant's counsel, that the role of the mediator is to make the other lawyer more amenable to settling at a figure closer to your own, is extremely limited. Providing a strong dose of reality may be one of the mediator's tasks when opposing counsel is unrealistic, but mediation is more likely to succeed when the mediator and advocates are partners in trying to resolve the dispute. A lawyer who is being beaten up by a mediator is likely to fight back. By refusing to concede obvious legal points the advocate can maintain a posture of strength while stalling the mediation. Or, an advocate who comes to believe the real battle is with the mediator can sabotage any settlement by scaring the client about the legal hazards involved. By concentrating on educating both clients about the relative strengths and weaknesses of the case, the mediator can help build the uncertainty that leads parties to settle. That is not beating up either side but simply being an agent of reality. And that should not threaten either advocate.

Finally, the prevailing view — both on the podium and in the audience —was that clients are a potential danger to a case. They might inadvertently reveal something — in a caucus outside the presence of the other party—that could undercut the view of the case the lawyer is trying to present. There are two reasons the possibility of a loss of apparent unanimity is disconcerting to advocates. First, some lawyers feel it is important to mislead the mediator about the conviction with which the client or advocate holds certain views. The theory is that the mediator who is convinced your side holds an unalterable view will try to convince the other side to change. In this view recalcitrance leads to "victory." But the mediator usually recognizes this game and refuses to waste efforts seeking concessions from the other side. Thus, your unalterable position simply tells the mediator you are not ready to settle.

Second, some advocates believe they must protect clients from themselves. In this view, no worthy advocate would leave a client vulnerable to neutral persuasion. After all, the client might settle on terms the advocate deems inappropriate. The advocate's real fear is actually loss of control. In truth, however, it is the client who exerts the ultimate control. The client decides whether to continue litigating or accept an offer of settlement.

The mock mediation underscored the dangers of approaching mediation as though it were a settlement conference. It isn't. It is an opportunity for the clients to work closely with a mediator to eliminate the barriers to resolving the suit.

Norman Brand is a San Francisco attorney whose practice is limited to mediation and arbitration.


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