Ineffective Advocacy in Mediation

  • December 05, 2018
  • Marc Bhalla

In my earlier article, Effective Advocacy at Mediation, we explored ways that legal representatives can effectively participate in mediation on behalf of clients. Further consideration of good mediation advocacy can include learning from mistakes. Indeed, a review of some common, ineffective approaches to mediation offers opportunities to better understand the type of behaviours to avoid at mediation, and why.

Doing All the Talking

Good mediators do not assume to know everything about the parties to a dispute and refrain from passing judgment or drawing conclusions as to what may be a good outcome for them. Lawyers, on the other hand, are often trained to do just that. Whether it be in rendering a legal opinion, assessing the quality of another party’s position or representing a client in an adversarial setting, the role of the legal representative is often to offer what they feel is the most appropriate - or just - outcome to a situation. 

Some aspiring mediators with a background in law have a tendency to draw their own conclusions as to how a dispute should be resolved and focus on pushing parties toward the settlement option that they consider to be best. While ADR purists may take offence to this approach, the real downfall of it in practice is that assumptions are made that risk missing opportunities to uncover additional information that can be utilized to help build better outcomes.

It is essential for legal representatives to do their homework and come to mediation prepared. Thinking in advance about a desired outcome and participating in a manner that encourages others to agree to your preference does not go so far as to mean arriving having already decided the outcome of a dispute. 

Entering mediation with a closed mind fails to leverage the opportunities that the process presents to gain a better understanding of the interests of others involved in the conflict and to explore creative alternatives. So, while it is important to think ahead about realistic, possible and positive outcomes, do not assume that every potential outcome can be considered in advance of mediation or take for granted the insights that can be gained in the course of participating in the process. 

Case Study:

A lawyer over-prepared for mediation and convinced their client that they had thought about and considered every potential outcome to the conflict. Having selected what they felt was the best settlement option, the lawyer and client focused their participation in the mediation on expressing to the other party to the dispute the pros and cons of every possible settlement choice that they had considered and explaining their conclusion. Both lawyer and client felt that they were being open, honest and best positioned to convince the other party to agree with their preferred outcome. In the course of doing this, they neglected to take in what the other party was attempting to express. They had assumed that the other party only cared about receiving the largest amount of money possible in a negotiated settlement, neglecting the other party’s disclosure at the mediation of the value of an apology to them. Settlement terms could have been much less costly had they listened and considered what was important to the other party to the conflict, as revealed during the mediation.

Failing to Sufficiently Prepare

There is a big difference between acting a certain way in mediation strategically by design and doing so by necessity as a result of a lack of preparation. Unfortunately, some lawyers do not take preparing for mediation as seriously as they do preparing for adversarial processes. A lack of preparation can be perceived to be a lack of commitment to the mediation process, bad faith and/or unwillingness to be co-operative.

Mediation takes time and costs money.  A lawyer who is unprepared risks doing their client a disservice. An effective advocate in mediation knows the background of the dispute, has had an honest and candid conversation with their client about realistic outcomes, options (BATNA establishment) and has some degree of familiarity with the law and relevant case law that is most applicable to the situation. 

The degree of complexity of the dispute may impact how much preparation is needed; however, even a relatively simple conflict can have a better chance of being resolved at mediation with some advanced preparation. At the very least, a legal advocate should take the time to understand what their client would truly like to achieve in a negotiated settlement. This can impact both the strategic approach to the mediation and improve the prospect of achieving a desirable result. 

When the subject matter of a dispute is technical, effective legal advocates identify experts who may be able to help their client – or all participants – understand certain details or consequences of options being considered.  Sometimes, such an expert can be available for contact during the mediation and sometimes they are engaged afterwards, but failing to give consideration of this nature ahead of time is often a mistake.

Case Study:

The subject matter of a dispute was complicated and technical. It would clearly need to involve the insight of an engineer. One party had already engaged an engineer to assist with the matter and referenced the engineer’s findings in their mediation brief. At mediation, the lawyer representing the other party called the qualification of the engineer into question. When asked to suggest another engineer for the work, the lawyer stated that further research was required to identify someone appropriate. Especially as it was clear that the lawyer who took issue had planned to do so, these actions came off as a tactic utilized to stall any progress being made in the matter and a sign of bad faith. Why else would the lawyer object to the engineer already involved without considering a suitable alternative? 

The Pedestal

The pedestal concept has been shared many times in many different circumstances. A recent example comes from Toronto rapper Drake in his latest album, where he speaks about his first experiences finding success.

A sign to Drake that he had “made it” was that he had the opportunity to meet, and work with, artists whom he admired. While it was exciting for Drake to get the chance to collaborate with his heroes, in person, some disappointed him as they were not as great as he had expected. Drake had put them on a pedestal.

When it comes to legal representation in mediation, the “pedestal” concept applies in two ways – both of which contribute to ineffective advocacy. On the one hand, a party may put too much weight on the reputation of another party’s legal representative. On the other hand, a lawyer may get in their own way by thinking too highly of themselves. 

It is one thing to build rapport with and be respectful of another party’s legal counsel. That said, how long a lawyer has practised is not always indicative of how much experience they have mediating. Just because a lawyer comes to mediation with a “big reputation” does not mean they have necessarily properly prepared for the process, or properly prepared their client. Simply because a lawyer is well known or respected does not mean that you or your client should be intimidated about working with that lawyer in the mediation setting. Remember, mediation empowers the parties to control their own outcome. Settlement cannot be imposed and will only be reached if your client is agreeable. By all means, it can be helpful to leverage the expertise of others participating in the process; just ensure this is done in a manner that is constructive.

Many believe that ego has an important role in a lawyer’s success. However, ego can also get in the way of best serving a client. There are many experienced and well-respected lawyers who advocate effectively for their clients at mediation. There are many inexperienced and junior legal representatives who do so as well. A common trait that effective legal advocates have regardless of their year of call or mediation experience is that they park their ego at the door. They do this because, while their role in the process is important, mediation is not ultimately about the lawyers. It is about their clients.  Unlike court, the process is private and there is no third party decision maker to convince.

Case Study:

A well-known lawyer decided to make a spectacle of themselves at mediation. From the outset, they participated in a very dramatic fashion – threatening to leave right away and presenting their position in a manner that is usually reserved for actors on television and in the movies. It seemed that the lawyer spent so much time trying to impress their client with their “song and dance” that they forgot what they were there to do. The mediation opportunity was being squandered.

No one should expect a legal representative advocating for a client in mediation to have anything other than what is best for their client in mind. That being said, legal advocates can do their clients a great disservice by failing to make the most of the mediation opportunity through the use of ineffective approaches or insufficient preparation. 

When a matter moves into mediation, there is always a degree of uncertainty. There are unknowns and the outcome cannot be predicted, nor can all of the information that may come to light in the course of participating.  Effective legal advocates help their clients make the most out of mediation opportunities and stay away from strategies that risk unnecessarily squandering them. While there is no one right approach to every mediation, there are certainly approaches that should be avoided.  Assumptions, ego, games and insufficient preparation are rarely helpful if the goal is to attempt to find mutually agreeable terms of closure.

About the author

Marc Bhalla, Hons.B.A., C.Med, Q.Arb, MCIArb is a mediator and arbitrator who offers free online resources to help mediation participants (including legal representatives) prepare to take part in the process at www.Prepare2Mediate.ca. To learn more about Marc’s mediation practice, please visit www.MarcOnMediation.ca

 

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