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Mediation Advocacy: Seven Steps for Effective Preparation
   By Nancy Neal Yeend and John Paul Jones

Effectively representing your client during mediation is no accident. Good advocates are not born – they are prepared. To aid with preparation the following seven steps may be used as a road map for the mediation journey.

The needs of the client are at a deeper level than interests and may include those things that are difficult to quantify economically. Needs may include the desire to be vindicated, to be acknowledged as “right” or not to be found at fault. Needs are generally categorized as those elements described in Maslow’s hierarchy of human needs. (1) Early identification of all the mediation participants’ interests and needs is essential if the attorney is to develop a strategic plan for the mediation. (2)

As will be shown later, the needs and interests often become the criteria parties use to evaluate which offers are acceptable. This same assessment exercise is then conducted by viewing the situation from the perspective of the other side. Walking around a problem and examining it from all sides is extremely beneficial. Conducting an assessment is an important mediation preparation step and it is one that is frequently missed by many attorneys.

Determining the client’s “bottom line” establishes a benchmark when generating preliminary settlement options. Speculating on the other party’s BATNA and identifying their interests help clarify those settlement options that will meet everyone’s needs. Such interest-based or principled negotiation techniques may induce the other side to abandon a position and move closer to a mutual gains (win-win) option.

Using the previously identified interests and needs, settlement parameters can be established. Interests and needs can be thought of as criteria or factors which will be used as standards for evaluating the acceptability of any proposed settlement options. People use a variety of factors to determine if they will or will not do something. Typical criteria used by plaintiffs and defendants alike are: time (how quickly something can be accomplished), the law, customs or traditions of a profession or industry and economics (either funds for expense or the cost to rectify.)

These criteria are identified not only for the client, but also for the other side. Anticipating the criteria the other side will use for evaluating settlement options allows for more accurate prediction of the likelihood that a specific proposal will be accepted. For example, if after conducting an assessment it is determined that an important criterion for the client is obtaining funds for her child’s college education, a variety of options may become apparent for addressing that particular interest.

Armed with a knowledge of interests and needs a negotiator then develops a menu of options. Looking at another example, in a medical claim where the defendant’s offer is $3,000 and the plaintiff’s demand is $75,000, if the attorney understands the reason (need) for money, better options can be generated.

Perhaps the money is not needed immediately, in which case a structured settlement may be appropriate and will cost less than the amount demanded. If part of the demand is based on the person’s need to be “right,” then a letter of apology may meet that need. If the need is based on wanting to prevent something from happening to anyone else, then a pledge to change a certain practice or re-train may help fulfill the need.

Even if the client wants the other side to “pay until it hurts,” that need may be met by having money paid to a charity or put into an advertising campaign. Such a solution also allows the one writing the check to save face, because the money is not going  directly to the other party. The key to remember when planning and generating options is that money is only a symbol – the attorney who determines what the money symbolizes will be able to develop more creative settlement options.

Another part of a strategic plan is the development of questions to ask at the mediation table. Drafting a list of open-ended questions is useful because these types of questions produce the maximum amount of information. The more information exchanged between the participants, the easier it is to negotiate – without the exchange of information, there is nothing to negotiate.

Focusing on the classic open-ended questions of who, what, when, where and how increases the flow of information. Even better, asking broader questions, such as “tell us about…” or “describe what you saw” will open the floodgates of information. (5) Using the open-ended questions will clarify or confirm assumptions made during the initial assessment and expand the understanding of the criteria being used to evaluate options and offers.

There are as many mediation styles as there are mediators; however most styles are either described as evaluative or facilitative. If an attorney feels that the client’s expectations are unrealistic, an evaluative mediator can be helpful. If counsel is prepared, and has adequately prepared the client, then a facilitative mediation style is preferred. A facilitative mediator allows the attorney to retain more control over the negotiations. The last thing a prepared attorney needs is a meddling mediator.

Although it is nearly universally accepted that the person who assumes the role of mediator needs to be trained in the art of mediation, there is debate about whether the mediator needs to have subject-matter expertise. The process skills used by mediators, particularly nonjudgmental listening and collaborative problem solving, are different from the skills that have been honed by most judges and lawyers. Hence, some feel that a person who is a skilled mediator can mediate anything, especially when parties are represented.

Others argue that if a mediator does not understand the topic being negotiated, the mediator may miss asking effective reality-testing questions or may be unable to help the parties generate options. If the attorney representing the client is a skilled negotiator and is prepared, the necessity of having a subject-matter expert is greatly reduced.

Include the Client
One mediator has proclaimed that a major mistake made by counsel is forgetting to place the client in the center of the mediation stage. (8) Having the attorney and client work as a team is essential, because collaboration is a skill used in mediation, and client participation is essential. (9) When the client participates in the planning for the mediation, the often-cited fear that the client will become a “loose cannon” does not materialize. Mediator Tom Arnold believes that mediations fail simply because the attorney never lets the client speak. Mediation is a very participatory process in which the lawyer and the client can work together to achieve the client’s best interests. (10) In fact, mediation may be the last chance a client has to determine how best to meet his/her needs and interests. Other ADR processes and litigation place the final determination in the hands of another: arbitrator, judge or jury. One study has shown that the number one satisfaction factor for clients in mediation is the opportunity to actively participate and to be heard. (11)

Select the Right Site
Site selection is another important and all too often overlooked aspect of the mediation preparation process. Physical location increases or diminishes negotiation power. It is preferable if the negotiation takes place at a neutral location, such as the mediator’s offices, court reporter’s office or at court. If this is not possible, the mediation is held at the office of one of the attorneys. When this occurs the host attorney and his/her client gain an advantage. (14)

Familiarity with and control of the surroundings gives the host the upper hand. There are other factors to consider, including the size and shape of the mediation table, the uniformity of the chairs and availability of separate meeting rooms or other amenities. Any number of other subtleties can influence negotiation power and outcome of the mediation.

Having identified everyone during the initial assessment and encouraged them to attend the mediation helps prevent disasters at the conclusion of what would have otherwise been a good mediation. Absent parties with a vested interest in the outcome become saboteurs to the agreement. It should not be left up to the mediator to draft the agreement, even though many mediators carry laptop computers. Some mediators will not write an agreement because they do not want to appear to be practicing law and also feel that having the “power of the pen” affects their impartiality.

As part of the pre-mediation preparation, writing a draft settlement agreement with blank spaces for the specific terms is helpful. The final agreement should be detailed and include all settlement terms and conditions. Double-checking the agreement to see that all the issues are addressed and making sure the parties agree on the confidentiality of the agreement will prevent problems from developing. Identify procedures in the event of a breach of a settlement agreement and who will notify the court at the conclusion of the mediation. Making sure that the basic who, what, when, where, how and how much questions are covered in the agreement gives greater assurance of compliance with its terms and protects everyone. If during the drafting of the final agreement the negotiations break down, the parties may need to resume their discussions. The mediator’s talents are extremely important during this delicate time. Everyone must be satisfied with the terms of the settlement if compliance is expected.

In court-connected mediation, settlement occurs at the mediation session about 55 percent of the time. Another 15 percent of the cases are resolved within two weeks of the session after everyone has had time to reflect. Private mediation enjoys a higher success rate, with approximately 90 percent settling. Should the participants decide to return to the mediation table and re-open the negotiations, the client’s BATNA and criteria for evaluating options must be reassessed. Although it is the same case, new information may indicate a new strategic plan.

Evaluating the mediation results will reveal whether the preparation was appropriate. Reflecting on what the mediation accomplished, even if no settlement were reached, often reveals that the parties benefited from the process. The following questions will aid in determining the value of the mediation. Did the process narrow the issues? What useful information was exchanged? Was there any new insight into the case? How satisfied was the client? Conducting a self-assessment by answering those questions serves as a guide to whether something could have been done differently, and of so, what? Finally, there should be an evaluation of the mediator. How effective was the mediator? Did the mediator’s performance give reason to select him/her in the future? Post-mediation evaluation becomes the first step for preparing for the next mediation.

Three Final Rules
The purpose of mediation is to find a resolution that meets the client’s needs while consuming the least amount of time, money and other resources. It is important to remember that the mediation process is voluntary and can be stopped at any time. The session can be rescheduled, the site changed, or the mediator replaced. Part of any effective preparation is to know ahead of time what alternatives are available if the process is not working as contemplated. Finally, it is always beneficial to remember the three cardinal rules for mediation advocacy: preparation, preparation and preparation.