Counsel in Mediation
March 17, 2021
The REAL Role of Counsel in Mediation
By: Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR®; Executive Director/Mediator,
Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end.
These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed—and on the very possibilities presented through mediated problem-solving and settlement negotiations.
This post addresses how counsel can benefit from a veritable reframing of their view of the role of counsel.
At the core of their being, lawyers want to advocate for their clients. However, for maximum effectiveness at mediating settlement agreements, many counsel first could benefit by a veritable reframing of how they view their role as counsel and their approach to zealous advocacy.
Prepare for Mediation—Not Litigation Reframing begins with preparation; counsel must appreciate the need to prepare for mediation—not litigation. Both counsel and client alike should prepare for mediation substantively, emotionally, and attitudinally. In so doing, settlement negotiations and problem solving may unfold more smoothly and help disputing parties arrive at mutually acceptable outcomes. In many cases, that outcome could be full and complete resolution of the issues that prompted the mediation.
The Art of Negotiation, the Science of Persuasion Mediation is the “theatre of persuasion”—a blend of the art of negotiation and key principles drawn from the science of persuasion. The mediation provides parties with both an arena and an opportunity to confront each other with genuine needs and concerns and engage in quality discussions that hopefully will allow them to persuade one another to view the dispute differently.
In practice, however, many mediated negotiations break down because counsel and parties fail to consider the people component—the people side of conflict and the people side of negotiation—and its critical importance in the quest for persuasion.
This happens when counsels’ negotiating orientation tends toward rights and entitlement, on law and facts, often to the exclusion of the people involved and their deepest needs. The human factors at play in mediated negotiations are central to resolution and fundamental to reaching settlements and making deals. People are people. If counsel are to be of maximum effect in their role, they would do well to explore the basics of human behavior—the psychological and behavioral factors of problem solving.
Focus on the People Involved The six people-focused points below can help counsel begin to shift their mind set about their essential role at mediation—or at least to get their mediations off to a more productive start. These apply to almost any mediation, irrespective of the size or complexity of a particular dispute, because, after all…people are people.
1. Know thyself and know thy client. Counsel should consider this pre-mediation question: “Of the several outcomes desired from mediation, what is most important to my client?”
The second question to ask oneself: “What is my professional relationship with the other counsel to this particular dispute?” It is important to ponder the triggers that seem to cause any breakdown in communication with other counsel and how to manage those at mediation.
Counsel must probe to discern the underlying needs and concerns, fears and motivations of the client. In addition, counsel should examine themselves on their own needs, concerns, and motivations to ensure that they align with those of the client and present no conflict of interest.
2. Kindness and empathy go a long, long way. Often counsel at mediation adopt a polarizing stance and a harsh tone in delivering a message they feel beneficial to the client’s position. A better way–try genuine kindness. Be firm yet fair. Hard on the problem yet soft on people. Tough as nails in a negotiation yet polite and professional in the process. None of these qualities is mutually exclusive of the other.
A nationally acclaimed, widely celebrated trial lawyer with an impeccable reputation for civility and professionalism once said: “Conflicts come and conflicts go. In time people may not remember the details of a conflict, but they will remember the character you displayed while going through it!”
Empathy–the ability to stand in another’s shoes and see (or at least earnestly try to see) things more clearly from the other’s perspective, whether or not we agree—may wield even more formidable influence in the mediation theatre of persuasion.
3. People tend to reciprocate. A corollary to the kindness axiom above is that people tend to reciprocate the behavior displayed to them. Active listening tends to trigger a like response. Positive affirmations, verbal and nonverbal, somehow seem to bring about a like reaction.
The opposite also is true, and many a mediator and counsel no doubt can attest to this fact. Adversarial posturing and attacks at mediation tend to invite counter attacks. Someone “taking a shot” at another with ad hominems often cause the recipient to respond in kind. Interruption triggers more interruption. Disrespect begets disrespect. Apply Sir Isaac Newton’s third law of motion to the emotional realm: “to every action there’s an opposite and equal reaction.”
And before you know it, all the makings are in place for not only mediation ineffectiveness, but worse still, escalated conflict. Counsel can value the adversarial process–the very foundation of American legal contests–without being unduly adversarial, particularly at mediation.
This is one of the most important areas in which counsel as a whole could improve.
Reciprocation is a two-way street. Counsel should model positive behavior and opt for the road leading to positive outcomes rather than to dead-end impasse. Other counsel and principals are much more likely to reciprocate positive behavior. What a good day for mediation when that occurs.
4. Words and language matter. An important yet often overlooked people factor centers on the very language used at mediation. Words are powerful. They create imagery in the mind of the listener. They can denote one thing but connote another. They can affirm and encourage or deny and discourage. Communication is complex, and the words and language one employs in mediated settlement discussions can affect the process for the better or for the worse.
Even though litigants are formally “plaintiffs” and “defendants” in a court of law, when the matter goes to mediation, is it helpful to refer to them as such? Need another party’s counsel be addressed as “opposing counsel?” Worse still, why refer to parties as “adversaries” or “opponents” or the seemingly benign “other side?”
These are vestiges of the adversarial process. The problem with these labels at mediation is that they interfere with the trust building so necessary for joint problem solving. Words that emphasize opposition reinforce polarization–the notion that parties (and their counsel) are adversaries working against one another, rather than together to solve a common problem.
Counsel should consider their role at mediation as one in which they change the dialogue and strip lexicon polarizing language from their lexicon, replacing it with language that inspires hope for a mutually acceptable outcome. Here are a few techniques:
Reframe the terms “mediation proceeding” and “mediation hearing” simply to “mediation conference” (or simply mediation “conversation”);
Reframe the label “other side” to the “other party”;
Reframe the term “opposing counsel” to the counsel’s actual name;
Never refer to other parties as “adversaries” or “opponents”;
Use actual names rather than impersonal nouns (“other counsel”) whenever possible–people and entities all have names; and
Reframe “settlement demands,” “offers,” and “counteroffers,” which are all legal terms of art, simply to “settlement proposals” to soften their effect on the receiving party and minimize the opportunity for negative reaction.
5. The problem belongs to the parties involved. At the end of the day, remember that the problem that precipitates the mediation fundamentally belongs to the parties involved, not to judges, juries, or arbitrators–or even mediators. The parties have lived the history and, as with most conflict, contributed in varying measure to the problem’s creation and escalation. Therefore, they must (and should) step up to do the proverbial heavy lifting required to bring about change.
Since the problem belongs to the parties that created it, it is axiomatic that, if given the right circumstances, those best able to find a workable solution are the parties themselves. Counsel should be mindful of the fact that mediators do not settle cases, parties do! Over-reliance on a mediator’s (or counsel’s) ability to influence settlement might only reinforce a passive engagement of principals at mediation. After all, they must own the consequences of their decisions.
Parties therefore need to be encouraged and equipped to work the process as actively as counsel and mediator, if not more so. Mediation is about party self-determination. Hence, the role of counsel at mediation is to assist their client to obtain the best information and positive mindset possible. This will maximize the client’s expression of self-determination on process and outcome, whether or not settlement ultimately is achieved.
6. Persistence pays. Finally, the counsel’s role at mediation is simply to hang in there. Mediator and counsel should never be the first to throw in the towel, absent harmful conduct that threatens process integrity or safety. Realize that what is true today may not be true tomorrow (or next week).
Parties may not have sufficient information on which to negotiate prudently on mediation “game day.” Yet and still, the process is helpful in gaining better insights about the problem. Many cases settle within days or weeks of the formal mediation, once parties have had an opportunity to reflect and reconstruct what they heard, learned, and felt at mediation. They then may determine for themselves, while free from the pressure of having to decide on the spot at mediation, that they can live with that “final and best” proposal on the table at mediation. Settlement then ensues. The process worked, lending further credence to the maxim that mediation, like conflict escalation, is a process, not an event. Persistence and patience go hand in hand.
Counsel sometimes falsely conclude that mediation was a “big waste of time” when it does not produce a settlement. Such a view may be short sighted; the better measure of mediation “success” is overall process effectiveness, with the mediator’s and counsel’s strategic guidance, in managing the underlying conflict and readying the parties for a further earnest attempt at resolution perhaps down the road. Counsel should appreciate that they may not reap the instantaneous fruits of their labor on the day of mediation. This is where persistence–a people factor–will pay off in the end.
The above six perspectives are just a few ways in which counsel may better discharge their roles in mediated settlement negotiations—a multi-faceted, people-centered, and consequential role indeed. Knowledge of self and client. Kindness and empathy. Reciprocal behavior. Attention to language. Party ownership. Last but not least, patience and persistence.