News from Maisano Mediation LLC

Maisano Mediation LLC Newsletter

June 2011

Greetings!

new photo

Happy Summer (Almost!)

I've written many times about the importance of preparing your client for a mediation. This time my focus is on preparing yourself as an advocate.

There is a movement within the legal community to bring more civility to the profession through mindfulness. Mindfulness has been defined in various ways since the days of Buddha. Mindfulness is an active, open attention to the present moment with a nonjudgmental awareness. Mindfulness is practiced most often through meditation or yoga. The movement in the legal community encourages a practice of mindful meditation to provide attorneys with an ability to respond to stress with more ease and balance, to better handle the unexpected, and to have an increased capacity to be more genuine and present for whatever arises from clients and witnesses, judges and opposing counsel, colleagues and family members.

Introducing lawyers to a mindfulness practice gives them the opportunity to retrain their minds to be more authentic, aware and civil. This new mindset gives them a new professional lens so, when serving as zealous advocates, attorneys will not engage in unproductive interactions that yield negative ramifications. Ultimately the mindfulness movement's goal is to reverse the alarming statistics that affect both the personal and professional lives of lawyers. Attorneys have the highest rate of depression among the professions, rampant job dissatisfaction and higher that average alcoholism and drug abuse rates.

In the context of mediation, lawyers have a wonderful opportunity in the confidential, non-adversarial process to implement a more positive, civil and mindful approach to helping their clients resolve their disputes. Introducing mindfulness to this approach that is already a kinder, gentler way of doing business can only improve outcomes for clients and advocates alike. To find out more about mindfulness practice, contact Washington Contemplative Lawyers or The Mindful Lawyer Institute.

Sincerely,

Nancy Maisano

[email protected]

Tip from the Trenches -- Maisano Mediation Logo

Strive to actively listen to understand your clients' perspective and the full context of their settlement decision.

Active listening is a frequently used term in mediation trainings and it is often employed by mediators to discover the underlying interests of the parties. It is also a primary component of mindfulness. To best prepare for mediations attorneys should apply the same tool to be fully aware of the clients' needs and desires, their emotional, financial and personal issues apart from the litigation, and their ability to withstand the realities of litigation. Failing to do so ahead of time may lead to a missed opportunity for resolution or worse -- a failure to fully understand your client's perspective prior to the mediation may lead to conflicting views between attorney and client about whether to settle and on what terms.
In a recent mediation, the lawyer and his client had opposing views at several important points during the process. The first time occurred just a couple hours into the mediation when the attorney determined that he didn't want to respond to the plaintiff's sky high opening offer and wanted to pull the plug on the entire process. The client wanted to continue negotiating, the attorney deferred to his client and so we continued. The parties eventually reached an impasse in negotiations and I suggested the last ditch effort of a mediator's proposal. The attorney didn't want to consider it but the client did. Once again, the attorney deferred to his client. Ultimately the attorney and his client diverged on whether to accept the mediator's proposal. Again the client's desire was fulfilled and the case settled on the terms of the mediator's proposal.
It was clear early on that the client had no desire or emotional ability to pursue litigation. She simply wanted to move on and close this chapter. There were several personal and financial factors that became apparent during the mediation that compelled the client to want settlement at all cost. These factors were not necessarily "relevant" facts as to the merits of the case but they were paramount to the client in mediation. The attorney on the other hand focused narrowly on the facts that were strictly relevant to the merits of the case. Much of my time in caucus with them focused on their differences in approach and desire for settlement versus litigation.
Had the attorney understood the client's perspective through mindfulness, active listening and empathy prior to the mediation, they could have approached the mediation with a congruent plan and achieved a better result for the client.