New England Biz Law Update
Mediation is both a form and continuation of negotiation. The ability to negotiate well is a core skill of a successful litigator.
However, trial lawyers often view mediation as a stepchild of litigation, where “adversarial advocacy” predominates. Many believe that when a litigator’s mindset is brought to a legal mediation, the process is bound to be adversarial.
But if a lawyer – as an adept negotiator for his or her client – is to succeed in mediation, he or she must improvise and adapt to the mindset of a professional mediation advocate. This means important pitfalls must be avoided and certain techniques mastered.
Common errors in mediation advocacy
Tom Arnold of Arnold, White & Durkee in Houston has identified 20 common errors in mediation, some of which are summarized below.
1. The wrong client in the room. A successful mediation advocate is not an amateur out to vindicate his or her own prior actions or judgments. Rather, as a professional and adept negotiator, a mediation advocate is “in the room” for one purpose – to bring about the best results for the client given the cards that have been dealt. The client’s strengths are to be maximized, and weaknesses minimized. Because mediation is a form of negotiation, it is imperative that the decision makers for the interested parties (those with authority to agree to a resolution) be exposed to the core arguments of each side.
2. The wrong lawyer in the room. To effectively advance their client’s interests at mediation, many lawyers may need to adapt their style. A strong advocate does not present her case in the mediation room with the gusto of a scathing cross-examiner in the courtroom. She also doesn’t deliver an impassioned closing argument, as if to a jury, in hopes of pushing the perfect combination of buttons.
Subtlety is the key. There are advantages to reining in the rhetoric. When a strong mediation advocate pitches her presentation to the decision maker across the table, she understands the coincident need to also nudge her client in a reasonable direction.
This subtle pushing and pulling is both art and skill. The most effective advocate conveys the message to all in the room that she can marshal the facts, law and equity in her client’s favor if the matter were to go to trial.
3. The wrong case. Mediation is not likely the place to resolve a dispute if a party seeks to establish some public precedent on which future disputes or similar propositions are to be based (i.e., as to an effect on a business product or product line). In most jurisdictions, statutes cloak mediation with confidentiality. For example, Massachusetts G.L. c. 233, § 23C provides, in part, that work product of a mediator is confidential.
Confidentiality is often affirmed, as well, in written agreements between and among the parties and the mediator. Simply put, if you have to be able to talk about the end result in the public marketplace, then mediation may not be the best means of attack.
4. Omitting client preparation. Showing up on the day of mediation with a client who is expecting to witness a real-world episode of “Boston Legal” is a recipe for disaster. Most clients want their day in court. They also want to know that they are ably represented.
Clients are influenced by the stereotype of the aggressive, flawlessly articulate courtroom trial lawyer. And few “television attorneys” are about to let their client’s tongue get in the way of a favorable, lucrative verdict.
Of course, the best real-life litigation attorneys know that context is crucial. So when wearing the hat of the strong mediation advocate, they convey to their clients that mediation is a complex negotiation process – a process in which the client is expected to be an active participant, particularly as to making tactical concessions.
5. Conducting mediation before discovery. Some limited discovery may be necessary to “develop the record” more fully prior to sitting down to the table. While an effective mediator can often persuade parties to come forward and be more candid than they otherwise would, there are limits to that ability. In addition, specific outcome-determinative information may reside entirely with a third-party witness. In this case, discovery is crucial if a successful mediation is to occur.
6. The failure to “hear” the other side. There is a real difference between “listening to” and “hearing” what the other party is saying at mediation. The following short (hopefully humorous) anecdote illustrates this concept.
Two gentlemen, an Englishman and a Scotsman, both hard of hearing, are out for a drive in the London suburbs. One turns to the other and says “Oh, this must be Wembly.” The second replies, “No, this is Thursday.” In turn, the first gentleman replies: “Yes, me too. Let’s stop and have a couple of pints!”
While each gentleman “listened to” the other, neither “heard” what the other was saying. In mediation, as in any negotiation, it is important for all parties to hear and understand the so-called meta-message, i.e., the underlying message that is being communicated by the other side, either directly or through the mediator.
7. The primacy of perceptions and motivations. It is imperative the parties overcome preconceived notions and ulterior motives that may impede the resolution of the problem at hand. This isn’t to suggest, however, that parties must “cave.”
Rather, the parties must work hard to probe their own perceptions and motivations to determine their continuing utility in the context of the mediation. They must also try to understand what cards are held by the other side if the dispute is to be effectively resolved.
For example, a plaintiff might perceive that “the defendant’s business plan was based on my sound market analysis and my good judgment and convictions about the technology.” Conversely, the defendant might perceive that “our business plan was based upon our own independent analysis in the market and the appropriate technology, not the plaintiff’s judgment.”
The source of the analysis may have little to do with the present dispute. A strong mediation advocate sees through these differing perceptions and focuses on the task at hand.
The concern with truthfulness
In an article in the Georgetown Journal of Legal Ethics, attorney Barry R. Tempkin referred to settlement negotiations as the ethical “no-man’s land of legal practice.” In his words, “lawyers posture, threaten, bluff, wheedle, obscure, misdirect and often outright mislead adversaries in order to obtain advantages for their clients.”
Scholars on negotiation have long recognized the “not-so-subtle art of misdirection,” which can include evasiveness, silence, or a true but incomplete statement of facts, as a fundamental negotiation tool. Moreover, some argue that estimates of price or value, as well as the parties’ subjective beliefs as to what would be an acceptable settlement of claims, are not subject to the truth-telling dictates of ethics rules because they are opinions rather than material facts.
A strong mediation advocate, like a skilled poker player, can win many hands through misdirection without ever cheating his opponent. Explaining what may appear to the client to be a “slippery slope,” and maintaining client confidence in both the mediation process and its professional representatives, is not easy.
Getting to yes – simplified
Several years ago, Roger Fisher and William Ury published a small book, Getting to Yes: Negotiating Agreements Without Giving In, which is mandatory reading for anyone who negotiates on behalf of others. Fisher and Ury describe stages in the negotiation process to which attorneys (here, as mediation advocates) must be alert.
The first stage is referred to as “positional” where each party asserts their position on the matters at hand, each taking turns stating what they want and, very briefly, why they want it. The second stage deals with individual “interests.” In the domestic relations context, for example, mediators and mediation advocates might explore more deeply why the parties either want to remain in the marital home or leave. The objective is to probe the interests that underlie the positions asserted in the previous stage.
With these interests in mind, experienced negotiators then move to the “options” stage, where the participants brainstorm options that respond to the expressed interests. As a subset of the options stage, one tries to establish objective criteria to evaluate the options. Again, to use an example from the domestic relations context: Why fight about the fair market value of the marital home when an objective third-party opinion from a neutral source is available? With the foregoing stages in mind, a strong mediation advocate can more ably move toward a principled resolution of the dispute.
Fisher and Ury also teach the BATNA, which stands for the “Best Alternative to a Negotiated Agreement.” In the context of civil disputes, participants in a mediated negotiation must keep in mind the risks and costs associated with the elephant sitting in the corner of the room – litigation.
The costs that come with protracted litigation are often substantial and the threat of paying them may provide the necessary impetus to settle. With a negotiated agreement, of course, the parties are relieved of the risk associated with an uncertain outcome and potentially undesirable result in court.
A final piece of advice from Fisher and Ury relevant to the realm of mediation advocacy may be stated as follows: “Be hard on the problems and soft on the people.” There is no reason why attorneys and their clients cannot have principled and spirited negotiations at the mediation table, conducted in the language of diplomacy. As mediation advocates and as professionals, this is our obligation.
James Marcellino is of counsel at Hanify & King in Boston, and is engaged in trial work and alternative dispute resolution. Jonathan Lamb is an associate in Hanify & King’s business litigation department. They can be reached at 617.423.0400 or [email protected] or [email protected].
