The recent trend towards joint “meet and greet” sessions only in mediation presents a serious challenge for lawyers in carrying out one of their main mediation functions: advocating on behalf of their clients for best settlement option on the table.
Mediation was introduced into the civil litigation system in the early 1990s to address concerns that although 90% of litigious cases were resolved by settlement, too often those settlements came at the last minute, “on the steps of the market”. courthouse”. Since there was no “off-the-shelf” template or template for mediating contentious cases at the time, the initial process evolved to replicate and incorporate the dynamics and critical factors of the mediating system. litigation, and one of those factors was the clients’ exposure to an effective defense throughout the litigation.
The defense of rights by a lawyer is essential in certain disputes
This basic function of the lawyer in mediation—negotiating and defending 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 corporations, the settlement evaluation process is typically multi-tiered, involving multiple people or committees, and the settlement objective or ” authority” is therefore often determined weeks before the mediation. session. While defending attorneys in such cases can help bring the parties closer together and lay the groundwork for future sessions, it is usually difficult to materially alter pre-set assessments on the day of the session.
In many other types of conflicts, however, advocacy during the mediation session is essential. For example, in disputes involving private corporations, partnerships, family businesses, trusts and estates, and in many construction and employment cases, the parties participating in the mediation are usually the ultimate decision makers. In these cases, it is not uncommon for these participants to have been intimately involved in the facts and circumstances giving rise to the dispute. They are often founders or owners of the company or business who have strong personalities and strong opinions on the dispute, which they often refer to as a “matter of principle”. These intervenors present often profess that they would rather “pay the lawyers to go to court” rather than settle with the opposing party. Importantly, however, notwithstanding the strong positions of the parties in such cases, the reality is that these issues are a subset of the 90% of cases that are ultimately resolved by settlement and, as noted, experience demonstrated that an important contributing factor to ultimate resolution is the formal exposure of parties during litigation to effective defense by counsel.
For the past 10 or so years, lawyers have indicated a reluctance to engage in a joint session with all parties present and even with brief and focused discussions or exchanges of positions. Common objection comments include, “These parties can’t be in the same room together,” “Any exchanges in a joint meeting will be counterproductive,” and “It will take all morning to get my client back to where he is. was if we have an interaction..” It is argued that concerns about parties’ willingness or even ability to be in the same room as the opposing party, or fears that any advocacy will be counterproductive, are not borne out by experience. a mediator, after reviewing confidential submissions, suggests that an explanation of one party’s position would likely facilitate settlement, the response is often that the mediator can explain that position to the other party in private caucuses.
Professor Frank Sander, a pioneer in the mediation process, urged mediators and lawyers to be flexible and use appropriate alternative dispute resolution tools and techniques, but stressed that all such uses and efforts should be ” friendly”. This is an essential element for both lawyers and mediators; the manner, nature and tone of the exchange of positions should be appropriate to the situation and executed productively. Mediation commentators, for example, often note that one of the advantages of mediation is the ability for lawyers to speak directly to the opposing party. However, bearing in mind Professor Sander’s friendly warning, it is suggested that it is generally not effective advocacy for lawyers, with laser focus and intensity, to address the opposing party directly. . Good advocates, however, may use the opportunity of a joint meeting to make comments and arguments that, although intended for decision makers, are framed in a somewhat indirect way, perhaps seemingly aimed at the mediator. or to opposing counsel or even to an imaginary judge or jury. . Litigants in this age of fewer trials often underestimate the effect on opposing parties of a well-presented, measured, focused and friendly plea. Parties to the other side of a lawsuit have generally, prior to mediation, heard the issues discussed only by their own counsel, and experience has shown that effective advocacy, presented in the semi-formal setting of Court-sanctioned, or sometimes court-ordered, mediation has a similar effect to arguments presented in a traditional trial. Even very confident, often cynical, or somewhat jaded parties are not immune to the sobering effects of a good lawyer effectively indicating what the judge or jury will hear and what redress or relief the lawyer will seek.
“You can explain our position”
It is not an effective substitute for asking or expecting, instead of such advocacy, that the mediator convey the message or position to the other party. It takes too long for even knowledgeable mediators to effectively communicate arguments and positions and, crucially, it often results in undermining the perception of the mediator’s neutrality. Conversely, when a mediator assists and facilitates an exchange or presentation of positions, they learn more, gain a more detailed and nuanced understanding of the issues, and are then better placed in a private caucus to reference and build upon. arguments. of advice. A risk analysis that arises from a discussion by a lawyer is more effective than if it was initially raised by the mediator.
Advocacy advocacy in mediation need not be in a joint session with traditional “opening statements” or presentations. On the contrary, effective mediators can facilitate a detailed and controlled discussion of the advantages and disadvantages of the respective positions. ADR pioneers envisioned a “multi-door courthouse” where some disputes would be resolved through mediation, others through early neutral assessment, summary jury trials, non-binding arbitration, or one of many and varied ways of settling disputes. A well-conducted joint session can combine and blend these various techniques into what amounts to a “mini-trial”, a forum where lawyers can present their views and positions on facts and issues and an opportunity for the parties to weigh, review and evaluate these positions and, ideally, come to a conclusion as to the outcome or available settlement that best meets their primary interests and objectives. The challenge for mediators is to conduct such a joint session in a way that, while obtaining enough information to assess and review positions, protects each side’s tactical, strategic and adversarial advantage. If, for example, there are facts that the other party is unlikely to discover before trial, or if the discussion could give the other party the opportunity to prepare defenses or counter arguments to positions that might not otherwise have been developed, the joint discussion should not take place. The main rule of the mediator should be to ensure that the mediation process does not harm the position of either party. If the mediator discerns or if the lawyer decides that an exchange of positions in a joint session should not take place, other opportunities will generally arise during the mediation during which separate issues can be discussed. in a joint setting, or perhaps in a limited setting with parties.
Lawyers and mediators who omit the possibility of a limited, directed, and friendly exchange of positions end up omitting a critical factor that has historically contributed to the resolution of the vast majority of litigious cases. Effective mediation processes must include effective defense counsel.•
John Van Winkle, of Van Winkle Baten Dispute Resolution, helped found and served as the second president of the American Bar Association’s Section of Dispute Resolution. The opinions expressed are those of the author.