Even though most trial lawyers have had some experience with mediation, their clients often do not understand the process or their role in it. Failure to adequately educate your client about mediation can have a deleterious effect on the outcome. It is therefore extremely important for the advocate to educate and prepare the client to achieve the goals at hand.
Identifying the Right Person to Attend
As a preliminary, the advocate needs to identify the right person to be present at the mediation. Of course, when dealing with a client who is an individual, this question is answered easily. It has to be that person.
However, when disputes involve companies, governments, or associations, it is critical that the advocate know whether the proffered party representative is the appropriate person. To the extent possible, the advocate should attempt to determine whether this person will have the requisite authority as well as the willingness to exercise such authority. (This article will deal primarily with party representatives.)
Unlike an individual party, a party representative will necessarily have only delegated authority. This authority will, by definition, have a certain finite limit.
If possible, the advocate should make sure that this level of authority is reasonable so as to increase the likelihood of a successful mediation and to avoid any potential charges of bad faith.
When there is concern that some "additional" authority may be needed to resolve a tough case, the advocate should arrange for the party representative's superior to be available by phone throughout the mediation.
Advocates recognize, however, when representing governmental parties, no individual at a mediation may have ultimate authority. In those cases, the deal must be blessed by a senior governmental official (e.g. a Governor) who invariably will be unable to attend the mediation. It may be enough that the party representative has the stature within the governmental entity that the opposing party may reasonably expect that her recommendation will be followed by the governmental party in question.
The notion of "willingness" includes the designated person's capacity to make a decision without fear of disfavor within the organization. This is a dynamic that may be difficult to analyze, but it can make all the difference. If the party representative is fearful about making a right decision because it makes him organizationally vulnerable, then it may be hard to close the deal.
Willingness also implicates the capacity of the individual to solve the problem at hand. The advocate should attempt to determine whether the designated person is so personally invested in the outcome of the dispute that he is unable to participate rationally in the process. Often, an organization believes that it should designate the person most knowledgeable about the facts of the dispute. This can be exactly the wrong person to represent the organization because he may not be able to assess the situation objectively and may view every concession as a personal affront. While it may be important for that person to participate in the process, ideally, the decision maker ought to be someone without a direct personal stake who is able to divorce his own personal feelings from what is best for the organization.
Unfortunately, the advocate regularly does not have a choice in the matter. This is all the more reason that the advocate needs to educate the party representative about the mediation process and provide a reasonable idea of what to expect.
Explaining the Mediation Process
For those party representatives who have never been involved in mediation, it is extremely important for the advocate to explain in detail how mediation works. On the other hand, those with experience in mediation may have had unhappy results. They will need to be persuaded how this mediation will be different and why.
For the uninitiated, the advocate cannot be too basic and should provide a thorough explanation about, for example, written statements before the mediation, opening statements at the mediation, caucuses, shuttle diplomacy, ex parte communications with the mediator, confidentiality, etc.
Patience is important. The advocate should inform the party representative that much of the time the mediator will not be directly interacting with them, but will be involved with the opposition in private caucuses. The party representative needs to know during this downtime that the absent mediator may be doing her most important work in caucus with the opposing party.
Mediation takes time. Often, that can mean going late into the evening. Generally speaking, the more patient the party is in mediation, the better the outcome.
Explaining the Role of the Mediator
The primary role of a mediator is as facilitator. In this role the mediator coordinates the communications between the parties so as to assist them in reaching a solution. A good mediator will explain at the outset that she, unlike an arbitrator or a judge, has no authority to decide the dispute.
In appropriate cases, experienced mediators with appropriate backgrounds can provide evaluative input to the parties to assist in assessing the value of a case and the reasonableness of an outcome. (This is a subject that involves myriad aspects, and a fuller exposition will be reserved for a later article.)
The impartiality of the mediator is critical. The advocate should explain to the party representative that the only loyalty that a good mediator has is to the resolution of the matter and not to a particular party's position. It can be fatal if a party representative senses partiality on the part of the mediator. Good mediators remain impartial in fact and in appearance throughout the process.
Another role effective mediators play in resolving disputes is in their ex parte communications with either side, both before and during the mediation. The mediator coordinates the flow of information between the caucuses. However, the mediator will be bound by the constraints the party representative put on the mediator as to what can be revealed to the other side.
The Behavior of the Party Representative
In addition to describing generally how the mediation process will unfold, the advocate should explain how a party representative should act during the mediation, both in joint session and in caucus.
The advocate should point out that both the opposing advocates and the opposing parties will be attempting to assess how a party representative behaves. This is particularly true in a case involving a party representative who might be expected to testify at trial or in an arbitration. As such, it will be important for the party representative to make as good an impression as possible.
Similarly, party representatives need to know how they should react to their opponents in joint sessions. In many cases, there is a substantial amount of emotion.
For a mediation to be successful, the party representative will want to convey a spirit of cooperation to negotiate in good faith from the outset and not send "negative vibes," such that the other parties become doubtful of the likely success of the mediation.
Indeed, the advocate needs to assess in extreme cases whether the potential enmity between parties is so great that more harm than good can come from attempting to have a joint session, with either party hurling epithets. On the other hand, experienced advocates and effective mediators know that it can be helpful for a party having strong emotions to have the opportunity to vent.
Preparing the party representative for what is coming is critical to successful advocacy in mediation and it is the key to ensuring that your party representative will leave the mediation with a favorable impression of the process, the outcome, and the advocate.
Daniel E. Toomey, Esq. is a Partner at Duane Morris, LLP where he focuses on construction, surety, and general commercial matters. He is ranked by Chambers USA, Super Lawyers, and is a Fellow of the American College of Trial Lawyers. Dan is a former Assistant US Attorney and was also an adjunct professor of law at Georgetown Law Center, where he founded the NITA Trial Advocacy program, and is currently the Director of the NITA Advanced Trial Advocacy program. For more than a decade, he has successfully mediated various cases referred by the United States District Court in DC.