Advocating for a client at mediation is different than doing so in court or arbitration. The role of a legal representative at mediation is multi-faceted in that there is more than one way to constructively and effectively contribute. As a result, if the goal is to attempt to resolve a dispute, effective advocacy in mediation requires different approaches, strategies and mindsets than those that can be utilized successfully elsewhere.
Attempting to convince the mediator that your legal arguments should prevail will often do little to resolve a conflict. The focus of your attention at mediation should be on those directly involved in the dispute, as mediation empowers them to have a say in the outcome. The fact that mediation is a conciliatory process heightens the importance of the “working relationship” of all participating.
While an argument could be made that efficiencies can be realized when there is good rapport built between counsel participating in an adversarial process, there is, in fact, much more than efficiency to be realized when good rapport is established between party representatives who are mediating.
Two opposing lawyers, who had no direct prior dealings, met briefly with the mediator minutes before their mediation was set to begin (as their respective clients waited in separate rooms). In the course of exchanging introductions and pleasantries, they had a candid discussion about the conflict – sharing which aspects of the dispute they felt their clients would most easily find agreement and where there would be challenges, not just in terms of finding prospective settlement but in their clients’ ability to participate without getting emotional.
Working with the mediator, the lawyers were able to leverage the flexibility of the process to structure their mediation in a manner that would best allow for success. They first addressed the aspects of the conflict that were relatively easy to resolve to build momentum and took cues from one another to call for breaks at appropriate times to help keep each other’s client from emotional outbursts that risked moving away from the progress being made. In essence, the lawyers embraced the conciliatory nature of the mediation process to truly work together and find a mutually agreeable outcome.
It cannot always be the case that legal representatives build good rapport with one another. Some lawyers find it to be strategically helpful to play games in adversarial processes, and make use of such behaviours in mediation. (Examples include offering last minute information, purposely being difficult with scheduling and posturing for client optics.)
At times, personal animosity can grow between legal representatives. Such animosity may not pose a large hurdle in court or arbitration where the legal representatives are focused on their adjudicator; however, in mediation, such personal animosity can offer a very large hurdle along the path to success.
While speaking on behalf of your client is often the most important role that a legal advocate can play, in the course of the mediation process, it is just one of several ways to significantly contribute. The presence of lawyers at mediation can help parties consider and weigh their settlement options (including their best alternative to a negotiated agreement, which may change as additional information comes to light during the course of the mediation). Lawyers can further contribute by helping their clients prepare for mediation and guiding the participation of their clients through the process.
A mediation was going nowhere, as personal animosity between the lawyers representing the parties was getting in the way. Attempts to better understand each participant’s underlying interests were thwarted by insults being traded back and forth between counsel. Making nasty comments under their breath prevailed over constructive dialog. Appreciating that the parties had a history and would likely have some form of ongoing interaction, the lawyers agreed to the mediator’s suggestion that they each take a step back and allow their clients to interact with one another more directly.
A calmer conversation ensued that gave rise to each party better understanding where the other was coming from. Settlement options then came to light which had not previously been considered.
The mediation proceeded to caucus, where each party was able to speak privately with their lawyer and assess the merits of their options. While, in the end, the lawyers ended up doing very little oral advocacy on behalf of their clients, the advocacy they offered in terms of support in the consideration of various options proved essential for the resolution of the dispute.
Taking the Heat
Not everyone participating in mediation involves legal representation. For a variety of factors, including cost considerations, some opt to participate in the mediation process on a self-represented basis. When one party involved in a mediation has a legal representative present and another does not, the dynamics at hand differ from situations where all mediation participants involve legal advocates. It logically follows that, in such a circumstance, the role of the lawyer involved can differ as well.
A self-represented party may not have the same knowledge of or comfort with the law and legal processes as the lawyer representing the other side of the dispute. The self-represented party may feel that there is a power imbalance or be intimidated merely from the number of participants on the other side of the table. It is also not uncommon for self-represented parties to be more personally tied to the conflict and less able to keep their emotions aside than a party who has their lawyer there to help them. It can be useful for a lawyer working with a self-represented party to keep this in mind and come to the mediation with a thick skin mentality, prepared to stay focused on achieving the outcome that will best serve their client.
After agreeing to participate in their mediation civilly and abide by a rule proposed by the mediator that name calling be avoided, a self-represented party opened the mediation with a profanity ridden tirade which included many insults aimed at the lawyer representing the other party to the dispute. Rather than respond in a similar manner or look to the mediator to enforce the rule that had been clearly and blatantly ignored, the lawyer acknowledged the negative feelings that the self-represented party had about the conflict and proceeded to speak in a calm and respectful manner to address the dispute. It soon became clear that it was important to the self-represented party to release their frustration and express their feelings before they could move on and attempt to resolve the conflict. By staying focused, the lawyer was able to avoid getting side tracked and ultimately achieved what their client had hoped to in mediating the matter.
A strategy that works well in an adversarial setting may prove to be ineffective in the conciliatory setting of mediation. Legal representatives are wise to recognize and appreciate the differences between these processes and leverage the various opportunities presented in the course of mediation to effectively advocate for their clients.
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
Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.