David Hoffman and Audrey Lee,
The Daily Record Newswire
As mediators, attorneys and educators, we understand the importance of preparing litigators to engage in mediation advocacy effectively. We also understand the realities of law firm practice and the scarcity of time attorneys have to devote to professional development.
However, we believe that mediation advocacy - which rarely is taught in law school - should be on the short list of skills that young litigators learn. Most firms (especially the larger ones) have the resources to provide training of this kind. This article outlines the components of such training and a summary of strategies for making mediation advocacy training highly effective.
1. Select experienced mediation advocates, and a mediator, as faculty.
Participants will likely have a variety of questions coming into the training. Some trainees may desire a simple overview of the process or basic tips on managing bad facts or insulting first offers. Other trainees may have more sophisticated questions regarding the tools and strategies employed by mediators.
While an experienced advocate is able to answer many of these questions, consider adding an experienced mediator as one of the faculty members, so that you get the perspective of someone who has observed advocacy strategies from a neutral vantage point. (If you wanted advice about effective strategies for fishing, would you rather talk with a fellow fishing enthusiast or, if they could talk, one of the fish?)
2. Know your audience.
Have your participants attended mediations? If so, what role did they play? Consider sending an email to participants in advance of the program to learn their level of experience and what specific topics, if any, they hope you will cover.
What you learn can be extremely helpful in making choices about how to design the program, where to focus your energies and how to set the attendees' expectations. For example, if you have a largely inexperienced group of participants, you may include specific exercises that you would otherwise skip (e.g., a simple negotiation exercise, or a mediation simulation that involves delivering an opening statement).
You may pair up participants for any simulations so they can tag-team in their role play, thereby increasing learning opportunities and scaling back the intimidation factor.
3. Demonstrate effective "moves."
Even experienced trainers can sometimes forget to include examples for how someone would put a given strategy into practice. A question you might get (or that the participants might silently ask) is, "how would that sound?" If you can wrangle a few volunteers or if you have a few faculty members, it's easy to include a "fishbowl demonstration" of challenging scenarios and effective responses and strategies.
If volunteers and faculty are scarce, consider including video demonstrations to illustrate aspects of the mediation process, mediator strategies and effective mediation advocacy moves.
Harvard's Program on Negotiation and the American Bar Association have mediation videos designed for this purpose. If you do a fishbowl demo, consider showing an amusingly inept version of mediation advocacy, as well as a skilled version. Humor promotes learning.
4. Include a mediation simulation.
For most adult learners, the best type of learning comes from "just doing it," and mediation advocacy is no exception. After sharing preparation strategies and demonstrating effective approaches, it's time to transition participants into a more active stage of learning. Mediation role-play simulations can be drafted from the faculty's own experiences or purchased from Harvard's Program on Negotiation or the ICC.
Each small group doing a simulation should ideally have a faculty member observing. Include time for feedback and debriefing in each small group, so that each of the participants can identify areas of success and opportunities to experiment with and improve upon the next time. Consider rotating the roles, so that everyone has the chance to serve as an advocate - and as a mediator. Asking each participant to identify (and perhaps write down) one helpful takeaway from this session also can be a meaningful way to promote future application of what each participant has learned. Seeing, hearing, doing and reflecting synergistically also reinforce learning.
5. Incorporate war stories.
Social psychologists tell us that story-telling is one of the most powerful forms of teaching. Of course, one can have too much of a good thing, and we lawyers sometimes do get carried away with our war stories. That said, a good description of a mediation - recounted from the perspective of an experienced advocate - communicates to the audience the values, strategies, and ethics of mediation advocacy in a uniquely powerful way.
6. Provide a checklist for quick future reference.
When all is said and done, participants may remember a few important takeaways from the training, and each may have learned different lessons. The participants' learning can be consolidated by giving them two assignments to be done as a group: creating a mediation preparation checklist and identifying the dos and don'ts of mediation advocacy.
Review their checklists, and ask them why each item is there. You can validate their experience and cement their learning by distributing their lists to others in the firm who use mediation. Going public with what they've learned will cause them to take the entire learning process more seriously and put it to better use.
In our own trainings, these components have been well received by participants. Flexibility, however, is at least as important as planning, and therefore we are always open to adapting our mediation advocacy trainings to the needs of participants. We encourage you to do the same in your own in-house trainings.
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David Hoffman is a mediator, arbitrator, attorney and founding member of Boston Law Collaborative. He teaches the mediation course at Harvard Law School, where he is the John H. Watson Jr. Lecturer on Law. Audrey Lee is a senior mediator and training director at Boston Law Collaborative, founding principal of Perspectiva and a longtime instructor for the Harvard Negotiation Institute.
Published: Tue, Sep 22, 2015
