Paul Monicatti
When it seems like everything around you, globally and locally, is in a constant state of dysfunctional conflict and turmoil, it is easy to think and act like it’s normal to be disruptive and disagreeable.
Nothing could be further from the truth. It doesn’t have to be that way when it comes to the practice of law and life. It is possible for lawyers to treat others with respect, civility, understanding, and professionalism. Mediation is the perfect place to do that.
This article discusses possible ways for lawyer advocates in mediation to rise above the ordinary and dramatically enhance the process, provided that they and their clients genuinely share the same goal —resolution of the case or controversy. Based on actual experience, these techniques work.
Aside from strategically preparing clients adequately prior to the day of mediation, the most important pre-mediation activities for lawyer advocates are preparing a written pre-mediation case summary and oral remarks to be presented at the mediation during any opening joint session. Each of these will be addressed separately. What follows is not intended to be a comprehensive discussion of best practices. Rather, it is submitted for your consideration as suggested alternatives.
Effective written mediation advocacy
Standard mediation practice requires parties to mutually exchange written pre-mediation summaries unless the dispute is simple or preparation cost is a factor. Submitting information via documents such as case evaluation summaries used in Michigan or dispositive motion briefs, in the interests of saving costs risks alienating the parties further. By definition these documents are intended to be heavily adversarial, argumentative, and one-sided rather than collaborative.
Pre-mediation summaries give an advocate the latitude to set a non-adversarial tone conducive to joint problem solving. An open mind and a serious intent to negotiate in good faith can be diplomatically signaled to the other side.
One strategy is politely suggesting to attorneys in scheduling correspondence that if they are planning to submit a pre-mediation case summary that is adversarial, they might reconsider and send one that tones down the rhetoric yet still advocates for clients. Otherwise, attorneys should send only existing background materials and spend time, effort, and money by preparing with clients for meaningful negotiations.
More promising is to request that counsel submit, with as little as 2-3 days advance notice, a 1-2 page case synopsis in non-narrative, bullet-point format, and briefly list:
• Legal theories for all claims and defenses, and cite without discussion any controlling cases or statutes
• All damages and remedies claimed or contested
• Key disputed factual, legal, damage, and evidentiary issues impeding settlement
• Procedural history and case status (trial court rulings, appeals, prior ADR attempts, etc.)
• Anything else important for the mediator to know on a preliminary basis
The latter strategy was successfully used recently in a complex, high stakes case.
Persuasive oral mediation advocacy
Advocates ought to welcome the opportunity to use an opening joint session to appeal directly to the decision makers on other side and to express/vent emotions constructively. The most common way for advocates to perfect oral advocacy skills is during mediation openings in joint session.
At the root of many disputes are misinformation, misunderstanding, and miscommunication. Joint sessions usually help eliminate a lot of these problems.
Here are some techniques I find most persuasive and least antagonistic:
• Conversation not confrontation
• Communication not interrogation
• Constructive discussion not destructive argument
• An interesting story that is credible and powerful, with a persuasive legal theory and compelling, memorable theme(s)
• Careful choice of words, avoiding “hot button” phraseology, inflammatory and polarizing comments, and sensitive areas
• Presentation that values respect, rapport, and trust with the other side
• Active listening more than talking
• An open mind receptive to different perspectives
• Calm and positive demeanor
• Problems, not people, are jointly attacked
• Empathy, understanding, compassion, humanity, and even apology expressed
• Emphasis on problem-solving for the future not problem-blaming for the past
Folks often frown on the use of opening joint sessions for all the usual excuses, many of which are legitimate concerns. Unscripted, unrestricted, and unguided opening joint sessions are risky and can be a recipe for mediation disaster. However, have you considered modifying your approach? Absolute refusal to consider joint sessions is like throwing out thebaby with the bath water.
Here are some innovative alternatives:
• “Learning Conversation” as used by Eric Galton in Texas
— Involves a collaborative group attempt to understand each other with no set agenda
— Mediator acts as joint discussion host to initiate conversation and mostly stays quiet as long as it goes well
— Abandons traditional no-interruption rule in mediation
— Uses interactive dialog rather than monolog, or lecture
— Encourages polite, non-confrontational questions
— Especially suited but not limited to pre-suit mediations and those with limited discovery
— Little if any lawyer resistance or flare-ups
• “Directed Discussion” as used by Jerry Palmer in Kansas
— Mediator sets agenda by specifically requesting parties to address particular issues
— Mediator controls topics counsel discuss and basic flow of information in an organized way
— Mediator prepares a discussion outline based on information gleaned from pre-mediation written submissions and ex-parte conversations with counsel
— Discussion flows from the mediator’s outline as the mediator directs questions to one side or another
— After mediator’s directed discussion, parties are given the opportunity to raise anything else they believe should be communicated to the other side before separating into private caucuses
• “Joint Session 2.0” as used by Jeff Kichaven in California
—Counsel and the mediator jointly collaborate to pre-arrange and set the agenda, giving counsel some control over the process
—Dependent on counsel’s submission of pre-mediation materials far enough in advance of the hearing to allow time for the mediator to follow-up with counsel before the mediation
—After reviewing submitted materials, mediator confers with each counsel by phone to determine critical issues and pressure points to be addressed as well as those to be avoided
—Mediator works separately to convince each side to focus on those issues and points in joint session in order to lay the foundation for productive conversation between attorney and client in the caucuses to follow.
• “Crossed Caucus” as used by the author
— Informal discussion, adhering to a pre-arranged agenda of specific topics, in which clients without attorneys or attorneys without clients meet and talk together, usually in the mediator’s presence
— Relies on mutual agreement to have a casual conversation without confrontation, accusation, or argument
— Focuses on problem solving solutions not problem blaming
— Addresses only what is most important to each side
— Timing is important, and it usually occurs in the later stages
— Especially useful in relationship-based disputes such as employer/employee, close corporation or family business, probate, life partner breakups
— Not useful when there is a radical power or sophistication imbalance
• “Extended Open Session” as used by the author
— Similar to Galton’s Learning Conversation in that all conversation takes place in open session, except for minimal private caucusing in order to: discuss problems, proposals, strategy, or confidential information; enlist the mediator’s help; or diffuse tension
— Emphasis is on interactive, continuous, open exchange of information back and forth
— Uses non-confrontational, non-argumentative questions interspersed with extended troubleshooting of issues, brainstorming options, and problem solving with creative, innovative, and unconventional ideas
What can we learn from all of these non-traditional methods? Since mediation by its very nature is flexible and adaptable to different situations, advocates who aren’t afraid to test out such techniques and others will become more versatile in their practices and perhaps more in demand. We are not suggesting their use in every mediation or even in most mediations. But if you try sometimes, you just might find, you get what you need in a mediation.
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Paul Monicatti has been an arbitrator since 1983 and a mediator since 1986 in all areas of the law except family law and criminal law. He’s a member of Professional Resolution Experts of Michigan and a charter member of The National Academy of Distinguished Neutrals. He has earned the highest ratings from Martindale-Hubbell, Best Lawyers in America, Super Lawyer, U.S. News and World Report, Crain’s Detroit Business, dbusiness magazine, and international Who’s Who Legal: Mediation. He was named Best Lawyers’ 2018 Troy Area Arbitration Lawyer of the Year and 2011 Detroit Area ADR Lawyer of the Year. He’s served as a court-appointed mediator, arbitrator, facilitator, case evaluator, receiver, expert witness, umpire, and referee. He was the court-appointed Settlement Master for the recent Flint water contamination remedial action litigation and the Dow Corning breast implant insurance coverage litigation in the mid-1990s. He authored the chapter on Mediation, Arbitration and other Dispute Resolution Methods in addition to co-authoring a chapter on Settlement, Negotiation and Alternative Dispute Resolution for ICLE’s Michigan Civil Procedure. He teaches ADR Advocacy Skills at WMU-Cooley Law School.
