Advocacy in mediation.

In general, trials are adversarial engagements between legal representatives of each litigating party, and the result is either victory or defeat. Mediation, on the other hand, is an attempt to allow the parties to fashion a resolution of their dispute.

Nonetheless, an attorney engaged in mediation remains an advocate for the client. This article explores the role of plaintiff's counsel at mediation and offers some practical tips that are applicable in almost any case, although we focus primarily on personal injury negligence claims.

As always, preparation and organization are crucial. To represent a client effectively at mediation, the advocate must have a clear message to communicate, must select die right approach, and must choose words that are appropriate for specific audiences.

The advocate must understand what the mediator is trying to do. According to Texas law, for example, mediation is "a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them."(1) The mediator's primary purpose, therefore, is to facilitate the exchange of information.

The parties may agree to mediate a dispute before or during litigation. Mediation is initiated either by agreement or by court order. A typical voluntary agreement may merely be a letter executed among the parties indicating an agreed mediation date, an agreed mediator, and an agreed location.

A court-ordered mediation usually states the name of an assigned mediator and a date by which the mediation must take place. In addition, courts routinely order that a reasonable fee be negotiated with the mediator, parties be bound by rules of mediation as stated by the court, and named parties be present during the entire mediation process (each corporate party being represented by an executive officer with authority to negotiate a settlement). Failure or refusal to attend the mediation may result in imposition of sanctions.

Simply because the court appoints a mediator does not necessarily mean that the parties must use that mediator. The parties may agree on another mediator and request a substitution. Selection of a mediator usually requires identifying someone with experience in the subject matter, respected opinions, and the capability to deliver each party's message.

Mediation is essentially a nonbinding process. A mediator is not a referee and does not make an award. However, the parties may agree to accept the mediation as binding. Or they may agree that if they are unable to reach an agreement, the mediator will act as an arbitrator and enter an award.

While specific techniques vary, most mediation involves some time spent in open discussion, allowing all participants to explain their position to the mediator and to the other side, and some time spent in a series of private sessions involving each party separately with the mediator.

Sooner or later, the mediator will want each party to answer each of the following questions:

* What are the strengths of your case?

* What are the weaknesses?

* What do you think a probable jury verdict could be?

* What "number" will you settle for?2 These questions are usually asked and answered in private sessions. The objective is to help each party identify a weakness in the case without admitting it in a joint session.

The mediator typically asks each side in private to provide a brief analysis of the important issues in dispute. During these confidential conferences, the mediator may challenge each side to defend its position. The give-and-take of this discussion often establishes the environment for settling the case.

The attorney who wants to advocate effectively during mediation must prepare for these sessions by addressing the following questions:

* Is my reasoning logical and free of fallacies?

* Have I fully investigated all the facts a excluded faulty assumptions?

* Is my theory of the case supported by credible witnesses?

* Do I have admissible evidence supporting my position?

* Is my reasoning based on common sense and comprehensible to those in my audience?

* How will opposing counsel react to my conclusions?

An attorney who responds to these six questions honestly will be prepared to participate effectively during both the public and private sessions of the process.

Since the first part of the process is typically case analysis, the attorney's ability to discuss jury verdicts and damages attached to similar cases will enhance the plaintiff's position dramatically.

Preparing the Client

Long before any mediation session begins, the attorney must begin to prepare the client. Preparation actually begins with the initial interview. The attorney should conduct a thorough interrogation while allowing the client to vent freely as much as possible without interruption. After analyzing the problem, the attorney must determine whether the client might be better off litigating or pursuing some form of alternative dispute resolution.

The attorney must explain clearly the risks, responsibilities, and costs associated with various paths. And the attorney must never make any promises or guarantees concerning the outcome of a case.

These "facts of life" should be repeated frequently as the client becomes involved in the discovery process, factual development, and witness preparation. Generally, advocates will find that an informed client is not only a happy one but also one who will take an active role in the mediation process.(3)

Since a plaintiff at mediation may not have his or her day in court, the process itself will have to play a large part in the overall healing process. But that healing can only occur if the plaintiff is directly involved and feels a sense of satisfaction at the outcome.

Technique

During mediation, the attorney is expected to be an advocate for the client. Too often, that advocate may get things off to a sour start by showing up with a disorganized expandable file folder or by making an opening statement that includes a ridiculous demand.

The effective advocate approaches mediation as if it were a trial. The client's position should be communicated effectively by developing a theme, making use of storytelling techniques, and presenting evidence in an orderly way.

The big difference between trial and mediation is that the attorney must put aside techniques specifically tuned to persuading a jury. Instead, the target audience during mediation is the decision maker--the opponent, the claims adjuster, or the opponent's attorney.

The key decision maker may vary depending on the type of case. For example, in an automobile collision case, the claims adjuster usually makes all decisions concerning resolution of the claim. The defense attorney is hired solely to provide evaluations and try the lawsuit. In a medical negligence case, the physician probably has a consent clause in the insuring agreement that allows the physician to refuse consent on offers of settlement. In a business case without insurance, the party is usually the sole decision maker but may have an in-house risk management officer make the final decision. Of course, no opportunity should be missed to gain the support of the mediator, but the person who must ultimately be persuaded by the advocate's theme is the decision maker.

Packaging the Product

When we think of the practice of law as a business, we recognize that the overwhelming benefit of mediation is that it can reduce the cost of litigation. To make the process work, attorneys must attune themselves to their clients' true needs and value cases accordingly.

Unrealistic demands foster increased costs. Simply put, a businessperson who is interested in making a sale must not only package a product attractively but must also ask a fair price.

In mediation, the packaged product consists of the advocate's organized ideas that link the facts of the plaintiff's case to the law. Messages are sent to the other side, where they are interpreted and used to formulate a reply. The mediator, mean while, intervenes' whenever intervention may provide a catalyst for settlement.

Each side in this scenario will be affected by variables such as tone of voice, volume, and inflection. Effective communication requires intensive listening by both sides. One who merely "hears out" a speaker while waiting impatiently for an opportunity to speak does not receive a complete message. Plaintiff's counsel must master the art of effective two-way communication.

This communication, of course, began long before mediation. Typically, plaintiff's counsel will have discussed the case with an adjuster or opposing counsel several times before mediation. Likewise, counsel will have heard the defense views. When preparing for mediation, it is imperative to recall those encounters and anticipate defense statements that will probably be made during the joint session.

During opening remarks, the plaintiff's attorney should attempt to defuse hostility by showing an understanding of the defense's position. Of course, this should be done while communicating the strength of the plaintiff's position. By simply paraphrasing earlier comments made by the defense, counsel can show that he or she was listening and that the plaintiff has heard the message.

It is never a good idea to respond in a flatly negative way to the defense position. By simply saying, "We agree to disagree," counsel allows the opposition to "save face," which is an important human consideration.

When plaintiff and defense counsel disagree on purely legal or procedural matters, it may be beneficial to meet outside the presence of the parties to resolve differences. This can avoid the possibility that the outcome of the technical dispute might in some way negatively influence either party's substantive argument.

Persuading the Audience

The advocate's ability to persuade the mediator, the claims adjuster, and the insured will ultimately determine whether the plaintiff succeeds at mediation. It is counsel's obligation to tactfully persuade the target audience that the facts the plaintiff contends are correct. In addition, the advocate must persuade the audience that the law also favors the plaintiff's position and that extenuating circumstances favor the plaintiff An advocate does not necessarily speak to the mediator. Comments are addressed directly to the decision makers (the insured, for example, and the claims adjuster).

If the plaintiff's attorney has not worked with a particular adjuster previously, it is a good idea to learn as much as possible about that person before the mediation session. Talking to other lawyers who have had experience with the adjuster may reveal what behavior results in the adjuster's respect and what traps or pitfalls should be avoided.

A brief, well-reasoned position statement communicates solid preparation and organization. Since the mediator will repeat this position to the disputing parties, a concise, persuasive message is a must.

While addressing the decision maker, plaintiff's counsel will nonetheless be engaged in representing the plaintiff's case to the mediator. The opening statement, in fact, may look and sound like a summation--with physical evidence and summaries of deposition testimony.

Defense counsel, in turn, will try to convince the mediator of the weakness of the plaintiff's case. However, both parties must also focus on whether their counterparts are actually moving in the direction of settlement.(4)

Using demonstrative evidence at mediation can also be very effective. It is well known that people retain things better when the communication includes demonstrative aids. Simple illustrations that directly emphasize points can be powerful weapons for success.

The advocate should also acknowledge any negative facts. Doing so gives the advocate an opportunity to present the negative facts in the most favoruble light and to take some wind out of the opposing party's sail.

Attorneys disagree as to when decisive facts should be presented. For example, some defense attorneys have stated at mediation that they are unwilling to provide explanations for their counter-contentions during the parties' general session but will limit those discussions to closed sessions with the mediator. This approach is not only foolish but has been recognized as a leading factor in the failure of the process.(5)

If a party has a decisive fact that can tip the balance to one side or the other, the fact should immediately be presented for discussion. The process cannot be successful when parties are left to wonder, "What secrets does the other side have?" For the mediation to work properly, all parties must recognize that open discussion of all relevant facts will ultimately lead to a successful settlement.

Finally, the advocate must provide the target audience with a conclusion. It cannot be assumed that an audience will make the same conclusion from the facts that the plaintiff's advocate has made. For the communication to be complete, the conclusion must be clearly stated for each specific audience.

Body Language

When communicating with decision makers or the mediator, the advocate must remain aware of the importance of body language.(6)

Eye contact may be the single most important element of body language. It reinforces communication and persuasion. Suffice it to say that the attorney should educate the client on this point. A good rule is to have a client look at each person while that person is speaking, then look away when the speaker finishes. Nothing is to be gained by a staring match. However, looking directly at a speaker indicates interest and also discourages the speaker from inflating the truth.

Mirroring--imitating another's body language--is also important. By mirroring someone else's posture, a positive message can be conveyed.

For example, if a claims adjuster sits close to the negotiating table, plaintiff's counsel should sit close to the table. If the adjuster sits farther away, counsel should sit farther away. If the adjuster uses gestures, counsel should do the same. Mirroring says, "I am with you, I understand you."(7)

The level of energy displayed during the communication process, both verbal and nonverbal, also sends a message. Taking no physical action says, "I am doing my, duty and not much more." Releasing positive energy may be the key to successful mediation when it conveys a more powerful approach than an opponent's. For example, merely walking with your head up in a confident manner or sitting up and smiling when others appear frustrated can convey a positive message. Mode of dress, of course, must be counted among nonverbal communicators. It is not necessary for counsel and client to be fashion models to prevail, but it is as important to dress appropriately for mediation as it is for trial.

Of all the elements of body language, however, physical touch may be the most potent. Touching is associated with overcoming barriers, dissolving animosity, and engendering warmth.(8)

By merely placing a hand on the plaintiff's shoulder while making a statement, the advocate conveys that there is a degree of trust and warmth between them. The gesture humanizes the dispute and communicates that counsel and client are a strong and united team.

Only One Way to Win

The reality of the mediation process is quite simple. The only way to lose is to fail to resolve the case. The only way to win is to achieve early resolution and avoid relatively costly settlement at the courthouse door.

The parties have either agreed or been ordered to meet in good faith to discuss the plaintiff's claims. This may be the last opportunity for each side to jointly resolve the controversy before taking on the full costs of trial. There will always be some cases where trial is more appropriate and advantageous for a client, but the overall economic impact of mediation is undeniably favorable.

Litigators should reflect on the way they would like to be treated by their adversaries. This "golden rule" approach will open the door to honest and reasonable communication, which is the key to successful mediation. This approach can help narrow divisive issues and resolve disputes. Beyond that, the mediation session demands preparation, skillful use of communication techniques, and employment of whatever measures are appropriate to convey a persuasive message to the mediator and the decision maker.

Full disclosure, a focused presentation, and attention to avoiding common presentation pitfalls will dramatically strengthen the advocate's position.

RELATED ARTICLE: Questions for Proposed Mediators

Once adversaries have decided to try to settle their dispute through mediation, the next step is selecting the right neutral for the case. Time spent choosing the mediator and outlining the disputed issues will increase the odds that a mediation will succeed.

All parties or at least their attorneys should meet the prospective mediator--preferably jointly--before any party initiates ex parte contact. Bias or potential bias is a crucial issue to cover.

The mediator should disclose in writing all professional or social relationships with the parties, their counsel, their affiliated firms, and their employees. If no relationships exist, the mediator should confirm this fact in writing.

Here are other questions each party should ask the mediator.

Is the person a full-time or part-time mediator?

Full-time mediator may have more experience helping parties resolve disputes. Part-time mediators may be less expensive, and sometimes they know more about the substantive issues in dispute.

Does the mediator have a separate litigation practice?

If so, the parties should ask the mediator to describe it. Details about the mediator's law practice may provide references or may reveal evidence of bias.

Is the mediator a member of professional organizations?

This information also may provide references or evidence of bias.

Does the mediator have trial experience, either as a judge or as an advocate?

While courtroom experience is not essential, it can be helpful if the parties want the mediator to play an evaluative role. A former judge or advocate may be in a better position to advise people about what to expect if the litigation goes forward.

What is the mediator's fee?

The parties must know exactly what is covered by an hourly rate and what costs are additional. Areas to explore include minimum charges, use of assistants, travel time, and research.

How will being the mediator affect future relationships with the parties?

Will the mediator or the mediator's firm reserve the right to later represent one or more of the parties? If sensitive or confidential information may be revealed, the parties may want to prohibit the mediator from participating in future litigation against them.

What are the mediator's ground rules about confidentiality?

Because mediation is a form of settlement negotiation, Rule 408 of the Federal Rules of Evidence (or its state counterpart) applies, making most statements inadmissible as evidence. The mediator, however, may impose a stricter rule.

Does the mediator anticipate limited discovery on disputed issues?

If so, the parties and their counsel need to prepare properly.

Can the mediator supply references from parties who have been involved in similar disputes?

Checking references is only common sense. Questions to ask: Did the mediator generate multiple options, remain open to new ideas, adapt to changing circumstances?

Was the mediator fair, well prepared, persistent, a good listener and observer, and able to move the dialogue forward when parties became frustrated or recalcitrant? Did the mediator discourage hostility and waffling while allowing the parties to express their emotions?

What are the mediator's scheduling constraints?

Parties often forget to ask this obvious question. Some successful mediators are backlogged for months. If the parties want a quick resolution, a less busy part-time mediator may be a better choice.

What is the mediator's case success ratio?

The historic success rate of mediation in resolving business disputes is approximately 80 percent. Success rates below this average should be explained.

Layn R. Philips is a former U.S. district court judge who practice law in Newport Beach, California. This article was originally published in Alternatives, the newsletter of the CPR Institute for Dispute Resolution, New York, New York. @Layn R. Philips.

Notes

(1) TEX. R. CIV. P. ANN. [sections]154.023(a) (West 1993). (2) ABRAHAM P. ORDOVER ET AL., ALTERNATIVES TO LITIGATION: MEDIATION, ARBITRATION, AND THE ART OF DISPUTE RESOLUTION 35 (1993). (3) Useful checklists for preparing a plaintiff for mediation can be found in JOHN FARRELL FAY, ARBITRATING PERSONAL INJURY CLAIMS 76-80.4 (1992). (4) ORDOVER ET AL., supra note 2, at 75. (5) Id. at 21-27. (6) See generally ROBERTO AARON ET AL., TRIAL COMMUNICATION SKILIS 36-51 (1986). (7) Id. at 54. (8) Id. at 69-86.

Jeffrey L Weinstein practices with the Dallas law firm of Weinstein & Bagelman. Tailim Song is an attorney with the same firm. A different version of this article appeared in The Advocate, published by the Texas State Bar Litigation Section.