On Mediation

 

March 4, 2003

 


The lawyer as peacemaker: How attorneys can benefit from mediation

"Discourage litigation. Persuade your neighbors to compromise whenever they can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good person. There will be business enough."

--Abraham Lincoln

While attorneys may have a "bad rap" in some circles, most mediators love them. For the most part, we find that for cases either already in litigation or headed that way, the presence of attorneys is almost always helpful. Further, the absence of attorneys in such situations can impede a mediated solution. While many conflicts are successfully mediated every day without attorneys, attorneys can play an important and constructive part in mediation when present.

Why? A fundamental premise of mediation is that participants in the process derive a stake in the outcome. Mediators want attorneys to have such stakes; they are then less likely to undercut a good settlement because they have not been privy to the process. Another fundamental: Parties in the process should make decisions based on "informed consent." They should know everything about their case and its likelihood of success, as well as about the mediation process. Often the best and most trusted source of such information is their attorney. Mediators may provide information only in a neutral way; they may not give legal or professional advice (see California Dispute Resolution Council Standards of Practice #3). Legal advice, interpretation of the law, and importantly, reality testing regarding the outcome should the matter go to court is the realm of an advocate, an arbitrator, a judge -- not a mediator. An attorney in the mediation may well play this practical and important role.

In considering a case for mediation, a good attorney weighs several issues including the nature of the case and the personality of the client, as well as that of the opposing client and attorney.

Many -- if not most -- cases bound for court are good candidates for mediation if the parties' "sunk" costs are not excessive: that is, if one or the other side is not too invested because of time or money in a judgment; or if one of them is incapable or unwilling to communicate with the other. But increasingly, disputants have less choice about whether they'll mediate or not: Today, business and real estate contracts and homeowners associations require mediation as the first step in resolving complaints. A new state law regarding construction defect disputes requires mediation for many conflicts. If mediation is mandated, attorneys and clients benefit the most from mediation before positions harden, but after gathering enough information to understand the critical facts of the situation.

Clients are another matter. In most mediation models, clients play a more central role than in court proceedings. A good attorney prepares for this eventuality by ensuring the client is prepared to speak. In mediation, clients are often encouraged not only to speak for themselves but to each other. (In San Diego's Superior Court mediation program, clients are required to attend. In some private mediations, only the attorneys attend. When clients are present, attorneys often play their most essential role in the later stages of the process -- after their clients have spoken.)

Attorneys may find mediation an opportunity to see their own clients in action: how they communicate, react and respond. In the confidential setting provided by mediation, attorneys have a chance (protected by the California Evidence Code sections 1115 to 1118) to actually observe how clients might behave in depositions or on the witness stand. They can see how clients view the case, what interests they may have and what they'd be willing to do to settle. For example, in mediation, the attorney may discover that a client demanding money may really want an apology. This is a remedy the courts do not provide.

Equally useful is the opportunity to observe and assess the other clients at the table. In later stages, when mediator, clients and attorneys are engaged in working out a viable agreement, the early information-gathering opportunity becomes invaluable because by then, the attorneys know what both clients really want and can help craft an all-gain solution.

So, how can attorneys maximize the benefits of mediation? Successful negotiators offer something of value to the other side -- that will not cost the client very much.

Unlike the zero-sum atmosphere of a courtroom, mediation is an opportunity to "expand" the pie before the inevitable distributive bargaining of a settlement. It provides everyone with the opportunity to understand what is important. An attorney's legal knowledge of consequences, of predictable judgments and of future possibilities becomes an important resource for clients and mediators.

Further, by attending mediation with a client, the attorney gains:

1. A good reputation and referrals to other clients.

2. Repeat business from this client.

3. Savings in time and emotional investment resulting in hours and energy for other cases.

And in the long run, the attorney becomes the lawyer that Abraham Lincoln recommended.


Filner is the director of the San Diego Mediation Center's Training Institute.


 

March 4, 2003