February 1998
What's Your Specialty?
Dispute Resolution
Advocacy In Mediation
If you've ever directly participated in a mediation, you know that advocacy in that unique dispute
resolution forum calls for different skills than advocacy at trial. In many ways, a mediation
differs from trial because you're working with different players, playthings, and processes.
Instead of a fact-finder, there's a mediator: the player that manages the three-way negotiation
process. In a mediation, the primary "plaything" is not tangible; it's information. A key element
of the process is negotiating for information, and new information can often close a settlement
gap.
Enhance your role as a mediation advocate by putting a few of these pointers into practice.
- Design the process. Carefully select the mediator. Consider the need for limited, focused
discovery before the mediation. Schedule a full day for the process. (Don't make dinner plans.)
- Prepare. Know your BATNA (best alternative to a negotiated agreement) and WATNA
(worst alternative to a negotiated agreement)- that is, what your case is worth. Prepare your
client; make certain she understands the process and roles, such as the different functions of joint
and caucus sessions, the role of counsel (not highly adversarial); the role of the mediator (not a
judge).
- Get the authority you need to settle. What are your limits? If more is needed, can you
reach the decision-maker by phone?
- File a brief position paper with the mediator. Use attachments, exhibits, and key
documents. Be brief, frank, and persuasive.
- Protect confidentiality. Have a signed agreement to mediate, with a confidentiality clause.
- Set a friendly, cooperative (but persuasive) tone, cordial but not too formal. Don't
antagonize your opponents; they will not listen to you if you attack them, and you cannot settle
the case without their agreement.
- Write or outline your opening carefully, and then leave it in your briefcase. This may be
your only extended opportunity to speak to the other side and impress them with your
commitment to the case and your preparation.
- Ask questions. Your opponents have information that may be useful to you in assessing
their interests and the strengths and weaknesses of the case.
- Focus on interests, not positions. Base offers on benchmarks (e.g., lost wages plus
relocation expense). Be hard on the problem, not the people.
- Use documents and exhibits that speak louder than words.
- Let the client talk, but decide in advance whether in joint or caucus sessions. Clients
usually need their day in court.
- Bring a draft settlement agreement to the mediation, and get it signed by all required
parties when a settlement is reached.
Adapted from "Advocacy in Mediation: Ten Pointers to Success," by David Hoffan, in the
Just Resolutions Newsletter (Oct. 1997, Vol. 6, at 8), ABA Section of Dispute Resolution.
For more info on making the most of mediation and other alternative dispute processes, explore
the benefits of becoming a member of the Dispute Resolution Section. Members receive access
to a member-only electronic discussion group; Dispute Resolution Magazine and Just
Resolutions Newsletter; plus a 50% discount on the Ohio State Journal on Dispute Resolution.
The Section also provides members with discounts on a variety of publications, including Hot
Topics and Practical Tips in Mediation and the ADR Primer.
There are several avenues for networking with the more than 6,000 members of the Section.
Participate in one of the 17 committees, which includes Mediation, Arbitration, Incorporating
ADR into Your Law Practice, Ethics, Legislation, and Training. The Section sponsors six or
more CLE programs annually, like the upcoming conference "How to Win With Mediation" held
May 1, 1998, in Denver.
For more info on the Section, contact (202) 662-1688; e-mail dispute@abanet.org; or
[http://www.abanet.org/dispute].
 
|
|
