Tips from Mediators
Lawyers unfamiliar with mediation often are trapped into an “us vs. them” mentality. How can they switch to a “win-win” mentality? How can they modify the outlook of their clients to do the same? What role should a mediator play in this process?
Joy Noonan, LL. B., LL. M.(ADR), C. Med.
Joy's Website - Click on Photo
I do not think this mentality is limited to lawyers unfamiliar with mediation. I think the core of our training as lawyers still tends toward a “warrior” model. Law Professor Julie Macfarlane has defined what she calls “The New Lawyer” as one who is skilled at negotiating, relationship-building and deal-making. However, making the shift to this new model is not always easy.
The “us vs. them” mentality is a common reaction to conflict, but this does not mean that parties cannot be successful in negotiation. With the help of a mediator, the focus can become more on what that client needs and less on “getting” the other side. As lawyers see what they are able to achieve for their clients through mediation, the shift toward “win-win” will follow naturally.
Many clients are not able to move to this notion immediately (or ever), especially if there is a strong emotional component in the conflict. Pushing them too hard will make them feel you are not on their side. Go slowly, and ensure you develop some trust. The goal for counsel is to play up what a “win-win” will look like, to illustrate the best alternatives to a negotiated deal, and to talk with clients candidly about what litigation can and cannot give them in terms of emotional satisfaction. This is reality checking, taking time to really listen to what clients “need” as opposed to what they say they “want.”
Mediators are skilled at listening empathically and supporting the counsel in reality checking. We can ask questions in caucus that need to be asked – in order to help move clients to where their counsel already knows they need to go. Mediators are also helpful in brainstorming possible options, and sometimes we even have a few to toss out there ourselves. All in all, we work at shifting the experience from that of a “win-lose” battleground to that of a negotiation. It tends to change the energy and neutralize hostility for everyone if there is at least one person in the room whom everybody trusts.
Steven C. Gaon, B.A., J.D., C. Med.
Steven's Website - Click on Photo
It is difficult and risky for a mediator to try to change a lawyer's approach. Parties represented by counsel put themselves in their lawyers' hands, leaving it to them to determine the way the case will be managed and the approach that will be employed in the litigation. Ultimately, the decision to use an adversarial rather than a collaborative approach belongs to counsel.
Having said that, there are some lawyers and a number of clients who are simply unfamiliar with mediation and ADR. People need to know there is another way to resolve disputes. I like to use common sense when I attempt to persuade someone to consider a different tack. I will lay out the spectrum of outcomes of the litigation, and have the lawyer and client question whether their "win-lose" / "us vs. them" approach is likely to achieve the best outcome, given the inherent risk and extensive costs of litigation.
Usually, after some realistic assessment and self-reflection, people will reconsider their approach. But the mediator needs to be very careful not to intercede in the lawyer's strategy and tactics. A good explanation and some gentle persuasion from the mediator is always the best way to get people to adopt a "win-win" mentality.