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27/01/2012
The transition from trial advocacy to mediation advocacy The big challenge
Author / Custody Έλενα Κολτσάκη

Elena Koltsaki, PhD

People’s increasing need to gain control over decision in their disputes along with the impressive numbers of settlement rates of cases which are referred to mediation has made the process an indispensable tool of alternative dispute resolution. In many countries mediation is a long established and highly regarded means for resolving disputes, in which parties try to work together and settle their dispute with the help of a third person, the mediator, who is specially trained to help them reach a mutually acceptable agreement. In this process, parties are often assisted by their attorneys, who prepare their clients for mediation and may also be present in the actual sessions, helping the parties reach their own settlement.

It has been argued by people who have gained extensive experience over the years in mediation that “the worst mediation lawyers often are the best trial attorneys”. Is it a myth or a reality?

Countries in the EU, such as Greece, who have only recently adopted the EU Directive on mediation, have little, or even, no experience in the role of the lawyer in mediation. One thing is certain, though – lawyers are not at all prepared for what will actually happen in a mediation session and are very skeptical about their role. Some of them see their role as quite limited – others will probably try to dominate the process by behaving in an adversarial way. Many already admit to use mediation as a vehicle for informal discovery and sometimes as a forum to “shock and awe” the other party by demonstrating the strength of their case!

Many lawyers consider themselves already quite competent and experienced in conducting negotiations and do not see the need for any recourse to mediation or any additional training for that matter. Some might even think that there is a conflict between being a lawyer, where one of the main objects is to generate fee income and participating in mediation, a procedure that aims primarily to achieve early resolution and accordingly diminishes costs.

The purpose of this paper is to illustrate that if mediation and other forms of ADR are to take their proper place in the Greek – and the other European countries’ - justice system, they need to become a part of every lawyer’s legal education.

Mediation calls for a culture change in resolving disputes. In order for this change to take place, legal professionals must be convinced that it is not merely the mediators who need to be trained and educated about its potential use and benefits but also the attorneys. We are, therefore, facing a new challenge: how can lawyers, trained and experienced in trial advocacy, tailor their skills for mediation?

I. Distinction between mediation/ litigation and arbitration

The mediation process is a private and flexible process where parties are the decision-makers. The third party, the mediator, is not a decider but a facilitator of communication and understanding between the parties who may (in Greek law, must) be assisted by lawyers acting as true counsels.

Arbitration and litigation, by contrast, are formal and structured processes, where the third party (judge/arbitrator) is a decider who determines values and legal issues according to a specific set of rules and procedures based on the presentation of facts and production of documents by the parties and their representative lawyers.

II. Skills and approaches in litigation and mediation. Differences and similarities

a. Differences

Compared to litigation where a third party decides on the dispute, in mediation the client and attorney take responsibility for decision making and resolution of the dispute (not a third party).

In litigation the aim of the lawyer is to win the case for the client, regardless of the outcome for the opposite party. In mediation, whilst the aim is still to obtain the best possible settlement for the client, the focus is on joint problem solving, not defeating the enemy. The lawyer should be aware that it takes two to settle a case, the challenge being to find a solution that reasonably satisfies the interests of both parties. Accordingly, in mediation, focus is placed upon the clients’ underlying interests, which may not necessarily be consistent with a successful outcome in litigation.

The “judge or the jury” in mediation is not the mediator but the adversary. The key to mediation is communication and understanding. The persuasiveness of the attorney is very important but it is the parties that must be convinced not the mediator. The counsel has to persuade the other party to be sympathetic to his client’s cause. In mediation, it is important to acknowledge the client’s central role. Mediation is a problem solving approach centered on the parties. In trial, process is adversarial and centered on the lawyers. In mediation, lawyers do not have to speak for the client. Instead they place their focus on advice, guidance and information.

In litigation cross examination tactics and interrupting may serve as useful tools for the lawyers in finding the truth. By contrast, in mediation such practices tend to create an atmosphere of anger or defensiveness and leave little room for exchange of ideas. Instead, active and attentive listening is required in order to acknowledge the other parties interests and points of view and to encourage similar behavior.. Mediation is not a means for finding the truth but a process of searching for solutions by maintaining a supportive and cooperative demeanor.

In trial “too often lawyers are driven by what they think the result ought to be; mediation is about what the result can be”. The lawyer in mediation should be able to go beyond the legal issues and consider the dispute in a broader context. It is important to understand that almost no case is only about money.

b. Similarities.

The role of the counsel in mediation is, as in litigation, primarily to represent the interests of the client efficiently, skillfully, diligently, persuasively and ethically.

He has a duty to act fairly and in good faith and, of course, preserve confidentiality in client’s affairs.

The lawyer in mediation, as well as in litigation, couches his client on legal issues by clarifying questions, provides answers specific to the case, counsels on the legal claims, reviews written documents, helps the client understand what is legally binding, helps sorting out the consequences of certain decisions and prepares the necessary documentation. The client expects from his legal representative to provide him with the best information possible about cost and potential liability.

His role is to put forward his client’s needs firmly and in a forthright manner, still very diplomatic. At the same time he is there to help the client balance the risks of accepting or rejecting a settlement agreement.

vIn trial the lawyer has a duty not to mislead the court. The same duty applies in mediation, where the lawyer is expected to be open and truthful (esp. in caucus), disclose all relevant information and refrain from misleading the parties.

All these duties are equally inherent a) in the pre-mediation stage: during which the lawyer is expected to be adequately prepared and set up a strategy b) during mediation, when the lawyer is expected to help advance the process and provide the necessary assistance to the client, in the opening session as well as in the joint session and in private meetings.

III. What would it take to become a good mediation advocate?

Having projected the differences and the similarities of the skills and approaches of both the trial and the mediation attorney, I would like now to try to give some practical answers to attorneys willing to participate and support the mediation process, by addressing the following critical question:

“What would it take to become a good mediation advocate?”

1. UNDERSTANDING MEDIATION AS A PROCESS

First of all, the lawyer should have a clear understanding of the process. The object of mediation is not to find the right legal answer – but to find a basis for resolving a dispute.

Another issue that the lawyer must be ready to face is to decide if his client is a good choice for mediation. The first obstacle to initiating mediation can be the lawyer’s own client. Either because he might get the impression that the lawyer is trying to avoid litigation for lack of confidence in himself or/and in its legal case or because the client himself is not very knowledgeable of the situation, does not possess the skills to negotiate, lacks the ability to appear sympathetic, loses his temper very easily or is overly emotional.

When deciding whether to mediate, that is when the case is suitable for mediation, various factors should be considered by the lawyer, such as the nature of the dispute, the legal issues involved, problems of evidence, the need for confidentiality, the value of preserving relationships, creating a legal precedent

As timing is everything, it is equally important for the lawyer to be able to assess when the case is ripe for mediation.

2. INITIATING THE PROCESS

Convincing the other party to mediate. – Many lawyers are hesitant to suggest mediation for fear of showing weakness and trying to avoid trial. To overcome this concern, the lawyer should be prepared to stress the inherent need for negotiations, rely on his/her (or firms’) policy of exploring settlement before filing a case or going to court and maybe ask for a neutral to suggest mediation.

Selecting a mediator – The lawyer should get as much information on the style of the potential mediator. Focus must be placed on the values that all parties want from the mediator (training and experience, respect, good and active listening, integrity, impartiality, compassion, patience, neutrality, expertise, capacity to work hard). It would be of help to take also into consideration “who will the other side listen to”.

Where to mediate/ who will be present/ setting the ground rules. It’s important to structure the mediation in advance (logistics) in order to prevent distraction by procedural matters and allow greater concentration on the interests and objectives.

Preparing the case. A good mediation advocate should spend time to highlight the strengths and the weaknesses of the case for the client and the other party in order to understand fully the client’s goals and desires. He should be ready to anticipate the arguments that the opposing party is likely to make and prepare effective material with useful information that can help the mediator understand the history of the dispute and the critical facts. More is not necessarily better!

Preparing the client. In preparing the client, the lawyer should explain how the process works, what role he will play (who will take the lead) and spend time to understand fully what expectations has the client of him. On the other hand, the client should understand that “winning” in mediation does not mean “making the other side lose”. Mediation is a process that aims to reconcile disputes by agreements that satisfy the interests and concerns of both parties. Creating the best settlement option would involve giving as well as taking.

3. PARTICIPATING EFFECTIVELY IN MEDIATION

In mediation, the lawyer should present his case less formally and as objectively as possible – acknowledging the strengths of the opposing party’s position and giving a clear explanation of the client’s perspective of the dispute. He can be successful in doing so by projecting the right tone and by demonstrating at the same time a willingness to listen. This attitude would aid to develop a productive working climate. It must be clear to the lawyers that understanding does not necessarily mean agreeing.

Establishing a relationship with the mediator both through pre-mediation conferences and during the process and taking advantage of the mediator’s special powers and assistance can also prove very helpful for the successful outcome of the process.

As regards their relationship with their clients, lawyers are expected to provide them with practical and legal advice, analyzing BATNA and WATNA. Their role is to safeguarde confidentiality, assist their clients in drafting terms and conditions of settlement and overcome obstacles. They should be there to help clients to stay focused and calm, to help them formulate and assess the reasonableness of offers and, if needed, bring a sense of reality to an overconfident client.

It is expected that during the mediation process, lawyers demonstrate the ability to balance problem solving with tough negotiation as well as to get the deal done and get the best result for the client.

IV. Facing the challenge

There are many reasons why lawyers should see mediation as an opportunity not as a threat. For lawyers the challenge is to represent their clients effectively in mediation as they would in litigation.

In order to achieve client’s goals in mediation, the lawyer should be an active, rather than a passive participant in the process, shaping it and taking advantage of the mediator’s assistance and special powers.

What has been suggested earlier as possible ways to address “what would it take to become a good mediation advocate” reveals that the role of the lawyer in mediation does not really derogate from the usual obligations imposed on lawyers by law or any ethical rules, professional conduct rules and standards.

Undoubtedly, the shift from trial advocacy to mediation advocacy can be a bit unsettling for attorneys. The techniques and psychology involved are special. Intuitive or otherwise, a working understanding of the special nature of those techniques is a prerequisite in order to become effective in mediation.

Still, it does not require a totally new skill set but rather a modified skill set. For attorneys, to assist their clients and advance the goals of mediation, all they have to do is mainly “shift gears”, adopt different strategies and emphasize on skills which may lean more heavily to being an advisor and/ or negotiator than a fighting litigator.

But, is that really so different to what they have learned in law schools and practiced successfully over the years?

In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks and skills. He knows how to clarify legal issues, how to articulate the clients’ interests persuasively, he’s qualified to make risk assessments and to draft written agreements. He is already familiar with problem solving techniques and he is bound by ethical principles that involve integrity, competence, cooperation and understanding as well as treating parties with dignity and respect.

That’s basically the role of the lawyers in mediation, too.

Nevertheless, as consumers become more knowledgeable, they demand professional services and high quality of advice. In an increasingly competitive market, lawyers need to place an ever greater emphasis on efficiency in order to ensure they remain cost effective and profitable.

It is critically important to have lawyers understand that “a knowledge and appreciation of mediation is as necessary a part of what it means to be a good lawyer as a knowledge of the adversarial system and substantive law”. They should gain a proper understanding that effective techniques can influence the outcome of mediation. They should not underestimate the uniqueness of mediation and attempt to approach it in exactly the same way they approach trial.

In this context, and taking into consideration that the law is constantly changing due to the evolving case law and new legislation, continuing education is necessary to maintain standards of competence. Lawyers should always look to expand their knowledge and skills in new directions. Mediation is a new direction.

In meeting this challenge and managing this transition, attorneys may accordingly benefit from additional educational programs and seminars, where they can learn how to augment existing legal skills and use their knowledge and experience in support for their clients’ participation in the mediation process.

Another way in which lawyers may be encouraged to extend their legal knowledge and experience are special accreditation schemes which ensure that panel members maintain relevant standards of competency and expertise and enable consumers to identify legal practitioners with proven competency in given areas of law, such as mediation.

Hopefully, in Greece and in other countries, where mediation is still in its relevant infancy, we, lawyer – mediators, “pioneers” of mediation in our legal system, will be successful in convincing our colleague lawyers that mediation is an integral part of every lawyer’s practice and that the lawyer’s role as an advocate in mediation is as challenging as advocacy in litigation.

Our challenge is to persuade them that “the best trial attorney can also be the best mediation lawyer”!

Selected Bibliography

Books

Harvard Business Essentials, Negotiation, 2003.

Douglas Stone, Bruce Patton, Sheila Heen, Difficult Converstations, 2010.

Deepak Malhotra, Max H. Bazerman, Negotiation Genius, 2008.

Robert Mnookin, Bargaining with the Devil, 2010. Roger Fisher, Daniel Shapiro, Beyond reason, 2006.

Michael L. Moffitt, Robert C. Bordone, The Handbook of Dispute Resolution, 2005.

Roger Fisher, William Ury, Getting to Yes, 2011. Max H. Bazerman, Ann E. Tenbrunsel, Blind Spots, 2011.

Linda Singer, Settling disputes, 1992.

On the www

Lawrence Watson, Effective Advocacy in Mediation, a planning Guide to Prepare for a Civil Trial Mediation.

Kevin Bridston, Effective Advocacy in Mediation. Joyce Bradley, The lawyer’s role as counsel in mediation: some practical and ethical considerations.

Dwight Golann, Mediation Advocacy the role of lawyers in mediation, Jams International (ebook).

Effective Mediation Advocacy, The Mediator Magazine.

John C. Shea, A lawyer’s Guide to Mediation Preparation.