Edmund J. Sikorski, Jr.
Litigators are highly focused on one thing — Litigation.
That applies as well to documents and data recovered by discovery. The focus of that process is, “What Happened?”
Next comes marshaling evidence and expert opinion to support a theory of liability. The focus of that process is to establish “How” and “WHY” it happened.
Next comes the effort to determine how the evidence can be presented in the most convincing manner. In that process, evidentiary objections must be anticipated and overcome.
In this adversary environment, it is natural for entrenched positions to develop as the focus on a litigated conclusion intensifies, thereby threatening civility with the opposite party. The very nature of the process creates at least three cognitive impediments that directly affect conflict resolution, and thus the likelihood of settlement:
(1) Advocacy Bias—Concentrating on the case’s strengths with insufficient attention to its weaknesses.
(2) Cognitive Dissonance—Failing to consider data contradicting one’s viewpoint.
(3) Certainty Bias—Over-optimism about the outcome.
The enthusiasm generated by this process can infect the client to the extent that it can’t be modified later without disappointing the client.
We know, however, that 98 percent of all litigation settles at some point before the terrifying words “Call the jury” are uttered, at which time the combatants suddenly understand the perils of their scorched earth tactics and seek to find an accommodation with the opponent. This means that at some point the risk taking of litigation must pause enough to give serious consideration to a resolution that is acceptable to the client.
This new case analysis demands a skill set that is dramatically different. It is called Mediation Advocacy.
We do not ask generals to be diplomats or diplomats to be generals. Mediation Advocacy focuses on soliciting the cooperation of the opposing party by finding common ground instead of asserting a position.
The language, presentation and the approach must change from belligerence to diplomacy. The goal changes to reaching a mutually acceptable result, regardless of the claims of the parties. Risk analysis centers on the costs, monetary and emotional.
Mediation Advocacy does not include telling the other side what you will do to beat them at trial, as that approach will never be persuasive. Mediation advocacy is simply the developed art of persuasion. The other side must be persuaded that it is in their best interests to settle the dispute on your terms.
This skillset was first described by Aristotle 2,400 years ago: “Of the modes of persuasion furnished by the spoken word there are three kinds. The first depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof provided by the word of the speech itself.”
First, the mediation advocate must have command of the facts from both sides of the table. The law relating to the subject may have little to do with the terms of dispute resolution. Boisterous bombastic denunciations will always backfire. Treating people with disrespect, even when their stories verge on questionable, is normally counterproductive.
Second, the decision makers on the other side will be the first jurors. They are the intended audience. Appeal is made to the inherent human emotions along five general themes: (Haidt 2012 The Righteous Mind)
(1) Care or Harm
(2) Fairness or Cheating
(3) Loyalty or Betrayal
(4) Authority or Subversion
(5) Sanctity or Degradation
Every legal case will contain one or more of these themes. If employed in the mediation presentation they will have the identical effect as in an opening statement to the jury.
Third, proof or apparent proof is largely a function of presentation. A picture is worth a thousand words, because seeing is believing.
Aristotle had only oratory, and perhaps a few drawings to put mental images in the minds of his audience. Now we not only have pictures, photographs, and dramatizations, but also animations to carry the theme of presentations. Use of imagery in any form is an absolute necessity in presentations.
Is the goal a litigated conclusion or a negotiated conclusion? A litigated conclusion is not the same as cutting a business deal that considers and weighs the otherwise unspoken far reaching interests and objectives of the client and involves the client in the decision-making process.
Effective litigation advocacy concentrates on a litigated result and is not distracted by a concerted effort toward compromise resolution. Effective mediation advocacy concentrates on choice of words, the manner in which they are delivered, and a presentation that will give the opposing party a reason to reconsider its position and cooperate in reaching resolution without actual trial.
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Edmund J. Sikorski Jr. is a mediator in Ann Arbor. He can be reached at edsikorki3@gmail.com.
