Mediation Advocacy

This workshop is intended for lawyers who represent parties in mediation. It explains how they can use the structure of the process and the value added by mediators to achieve their bargaining goals.

Lawyers have traditionally seen mediation as a method to facilitate competitive bargaining. In this view,  a mediator’s primary role is to carry offers back and forth between the parties and shield them from the impact of each other’s hard tactics. When such bargaining breaks down,  the mediator can meet separately with parties and access confidential information that may be critical for building consensus. To do that, each mediator needs to find a balance between building trust by listening empathically and discussing risk by reality testing. A good mediation advocate should be able to work with the mediator to find that balance.

Mediators have power.   They cannot compel parties to settle, but they can influence the process of bargaining. Wise lawyers take advantage of this. As one mediator remarked about a litigator, a note of admiration in his voice,  “He moved me around like a chess piece!“. Indeed, good mediators are like chessboard knights;  they have many capabilities, and attorneys can use them to advance their bargaining strategies.

Mediators can enhance a lawyer’s ability to negotiate in many ways. A mediator can,  for example, improve communication between parties by conveying messages or explaining what an offer means (“Tell them we are at €25.000 but are prepared to talk seriously once they drop their claim to future profits.”). Mediators   can also provide information about the attitude of an opponent (“Has the plaintiff become any calmer since we met this morning?“) and can arrange informal discussions (“I think it would be helpful if we set up a private discussion between the two CFOs.“)

Mediation advocates can use mediation to pursue both competitive and cooperative negotiation strategies. Thus, for example, lawyers can make an extreme opening offer in mediation with less risk than if they used the same tactic in direct bargaining. This is because they can rely on the mediator to cushion the tactic’s impact (“scrape the other side off the ceiling“). Lawyers can also use mediation to support creative approaches, for example, by pressing a claim for money while privately asking the mediator to explore whether the other side is open to repairing a business relationship.

Particularly toward the end of the process, lawyers will likely find themselves in a three-sided negotiation,  bargaining with the other party and the mediator. Advocates can negotiate, for example, about whether the mediator uses a specific technique (“Before we would discuss liability, I’d appreciate it if you would let each side make another offer“) or can request that the mediator uses a tactic  (“Why don’t you suggest to both sides that they … ?“). Attorneys cannot expect a mediator to take sides in a dispute, but if a tactic is neutral, the mediator may follow a lawyer’s suggestion to use it.

The key lesson is not to approach the process passively but instead to use the mediation process in an active way to advance your client’s interests.