No readings.

21.

What are the characteristics of lawyers who are most effective on behalf of clients in the mediation process?

Younger (59 Albany Law Review (1996) 951) suggests the following (@959):

'The lawyer who is an open-minded problem-solver will generally provide the best service to the client in the mediation process.'

The qualities that Younger and others identify as critical to effective client representation in mediation include the folllowing:

• detailed preparation (see Topic Five above)
• anticipation
• close collaboration with the client
• patience
• tact
• creativity

22.

What undermines the effectiveness of the mediation process?

Research conducted at Ontario's first court-connected mediation project (Macfarlane, Ontario Ministry of the Attorney-General, 1995) indicates that certain types of behaviour, attitudes and omissions frustrate the mediation process and tend to produce mediation outcomes that disappoint clients. These include:

• an adversarial approach by one or both lawyers
• unrealistic expectations on the part of the client (often characterised by inadequate or nil attention to BATNA)
• scepticism about the process
• client inadequately briefed and prepared for mediation
• 'wrong' client representative present
• lawyers present without clients and without authority to settle
• client feels pressurised into settling by the mediator/ other side/ own lawyer
• client inadequately advised on whether or not to accept settlement

23.

Effective client representation in a mediation may be broken down into three, related parts.

The first of these three elements is effective communication skills

24.

In order to effectively participate in mediation, the lawyer needs to model some of the same communication skills as the mediator, for example:

• active listening (to the client; to the other side; to the mediator). It is critically important the client is not only heard by, but also listened to by the other side
• acknowledgement of the other side's concerns. Counsel should be aware of the significance of acknowledgement in reducing demands
• effective use of questioning, especially in probing the interests of the other side. Cross-examination style questioning is unlikely to be fruitful in a voluntary mediation where the other side can simply get up and walk away
• attention to non-verbal cues to gain information about what the other side is thinking, as well as saying (for example as a barometer of the confidence of the other side)
• an ability to build rapport with the other side. This will encourage the disclosure of information which can be used in settlement calculations (for example, the use of positive reframing to identify what the other side needs or wants from settlement)
• maintaining composure and patience

25.

A second element is understanding the mediation process and knowing how to use it both strategically and effectively

A familiarity with the process and dynamics of the mediation process is critical to effective client representation in mediation. This means that lawyers representing clients in mediation need to:

• recognise when mediation may be appropriate, and when it may not be appropriate, to meet clients needs and goals (see Topics Two and Three above)
• understand the purpose of the mediation process and how to use it effectively (see Topic Four above), including adjusting expectations of what is appropriate advocacy in the mediation context (see below)
• recognise the importance of the client being present and actively participating in the mediation process
• make a commitment to 'lasting' the process
• recognise the significance of the 'opening statement' (see Topic Five above)

26.

The third and final component of counsel's effective participation in mediation is advocacy - standing up for the clients interests.

Lawyers who are most effective in mediation have resolved the conflict between the adversarial character of the traditional advocate's role, and what best meets their clients' needs in mediation. This is sometimes described as

'loose the bark - keep the bite'.

This means that lawyers representing clients in mediation need to:

• begin mediation with a clear picture of their clients goals (including their BATNA and WATNA) which allows them to advise about possible settlement offers
• are willing to present their client's case in the form of interests, rather than simply as a series of legal positions
• can articulate their clients' interests clearly, firmly and succinctly (using the opening statement to effect) without unnecessary legal obfuscation and without posturing
• are aware of when to encourage, and when to discourage, conciliatory positions
• recognise when it might be necessary to intervene to protect their client from mediator pressure
• recognise when it might be necessary to intervene to prevent their client making an inappropriate statement
• can effectively analyse and appraise the benefits and downsides of any settlement option
• develop a good sense of when to ask for private caucus and other breaks, and make effective use of caucusing with their own client to appraise or reappraise expectations, goals etc
• make use of the mediator as a 'reality-tester' for both their client and the other side
• recognise the inevitable unpredictability of the mediation process, stay flexible and be ready for any eventuality!

The final Discussion Room for this course - 'Effective Client Representation in Mediation' - is available to you now to consider how you might apply the principles described above in actually representing a client in mediation.

Discussion Room Six is also the forum for evaluating the material that has been covered in this course and raising any questions that you might have for the instructor.

Having completed the class notes and readings, what do you now think about the following questions:

1. Do lawyers have a valuable role to play in mediation?
2. In what specific ways do you think that lawyers can make the most effective and significant contributions on behalf of their clients in mediation?
3. Would you ever advise a client to attend mediation without a lawyer present? If yes, under what circumstances?
4. Is it possible to reconcile traditional rights-based advocacy with advocacy that protects and extends the clients interests? Or are these two approaches inevitably at odds?