One Mediator’s Advice for Attorneys Representing Clients in Mediation

Life as an attorney teaches some firm and hard-won lessons. Be assertive! Advocate! Never let the other side get away with anything! And of course, when representing a client in mediation, the same rules should apply – right? Well, not always. Too many times I’ve seen highly skilled attorneys run a mediation right into the ground, simply because they are unable to table their agendas long enough to understand what their clients really seek to gain from the alternative dispute resolution process.

It’s not really our fault. Law school and law practice teach us to be zealous, guarding our client’s interests from attack and launching our own offensive at the same time. But at its core, mediation is about collaboration. In order to build an effective agreement, there must be a baseline of trust and respect between the parties (and between their attorneys). This can be difficult in a case that has already entered litigation, but then how much more vital is it for the attorneys to set the collaborative example for their clients? And don’t forget (should the mediation take a turn your client cannot abide) – each side always has the option to walk away from the mediation table – but conversely, all parties should enter the mediation room in a good faith spirit of negotiation.

The best advice I can give an attorney representing a client in mediation is this: have a candid conversation with your client about their goals, determine where they are comfortable with compromise, and ask your client if there are any non-negotiable items. Ask for breaks from the mediation as needed to check in with your client. Let your client speak if they are comfortable with voicing their own concerns. Brief your client on the collaborative nature of mediation, and encourage them to enter into the process in good faith. Fully and honestly brief the mediator about your client’s stance, and indicate what information should remain confidential. And, perhaps most importantly, lead by example. Mediation is a personal process that has great power to resolve conflict – if it is allowed to be personal.

Flexibility as Virtue, Not Weakness

In our highly individualist society, we are taught from a young age to stand up for ourselves, to fight for what is ours, and to stand our ground. Early lessons about sharing quickly go out the window as we learn to accumulate and compete. As a result, many of us feel weak when we compromise or allow another person to "win." However, in a mediation, those who find that they can share often emerge as the most satisfied participants.

I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.

How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.

Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.

Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.