Editor's Note: Below, A. Michelle Jernigan and Bruce A.Blitman, who are both certified and experienced mediators in thestate of Florida, continue their discussion about effectivemediation advocacy.

In part 1 of this series, we introduced fivequalities commonly possessed by attorneys who are successfulas advocates in the mediation process. We simultaneously identifiedways attorneys can unknowingly sabatoge the same process. Here, weexpound upon that framework with a candid discussion about whathelps and hinders dispute resolution.

6. Managing Client Expectations: “What Do You ReallyWant?”

As all seasoned mediation advocates know, proper management ofclient expectations begins at the start of the attorney-clientrelationship. Once an attorney begins to understand the basic factsof the case and analyzes the applicable legal theories, it is timeto craft a preliminary assessment of the case. It may be necessaryto conduct some discovery and investigation before reaching anyfinal conclusions. While some exploratory discovery is a necessity,confirmatory discovery may be overkill and should be avoided incertain instances.

Throughout the management of a case, counsel should repeatedlyadvise the clients of the strengths and weaknesses of the case andexplain what a realistic adjudicated outcome might be. Attorneysalso must explore with their clients what their true interests andneeds are, rather than focusing on their legal rights andpositions. A discharged employee may prefer reinstatement and anapology, rather than money. The interests, needs, motivations,concerns and reasons for each client are unique. There is no oneright solution to each client’s problem, and an attorney shouldhelp each client to understand what is actually wanted and neededas an acceptable resolution to each dispute.

Attorneys need to explain thoroughly to their clients that thelawyers’ role in mediation will differ from their role inlitigation. Lawyers who fail to take the time to do this will findtheir clients are disappointed with their performances at mediation– that they were “too soft” or weak in their presentations. Lawyersshould emphasize to their clients that certain outcomes that cannotbe obtained through a trial can be achieved through mediation. Thisexplanation should encourage the clients to be engaged and investedin the mediation process.

Attorneys also should educate their clients with respect to thenatural ebb and flow of mediation negotiations. While process isimportant, a successful outcome may be the ultimate goal. Where onestarts is not nearly as important as where one ends up. During thenegotiation phase of the mediation, it is important for the lawyersto advise their clients of the strategies they are employing andthe possible responses from their negotiating partners in the otherconference rooms.

Lawyers should work with mediators to establish objectivecriteria that support the parties’ negotiating positions andproposals. Clients will need ongoing encouragement and reassurancethroughout the negotiating process. Attorneys can model patience,professionalism, and calm for their clients, keeping them focusedand on task. Patience truly is a virtue in helping clients toobtain what they want and deserve.

7. Appropriate Time to Mediate: “Set the Meeting for theRight Amount of Time and the Right Time of Day”

In successful mediations, parties and their counsel respect eachother’s valuable time. When they choose to mediate, they prioritizethe case and give it their undivided time and attention. They donot want any of the participants in the process to feel rushed orpressured (although this can sometimes be an effective negotiatingstrategy). An attorney who schedules a mediation conference at 1:00p.m., knowing he has important depositions or court hearings toattend at 3:00 p.m., may do a great disservice to his clients andthe mediation process. Effective mediation advocates willschedule their mediation conferences at times when they and theirclients are at their emotional and physical peak. If they know thatthey or their clients are not “morning people,” then they will notschedule mediations early in the day.

Similarly, if they know clients must pick up children fromschool in the afternoon, mediations will be scheduled so that ampletime is allowed for these important responsibilities. An anxiousparent preoccupied with leaving a child stranded at school may betoo distracted to fully concentrate during the mediation process.Similarly, effective mediation advocates also will allow for someextra time to get from morning motion calendars to mediationsessions, as these hearings will not always end precisely on time.Through the years, mediations have unraveled before they evenstarted because some participants felt disrespected as a result ofdelays.

8. Doing the Dance: “Mediation Is AssistedNegotiation”

In a successful mediation, the parties and their counsel areeffective negotiators. They know what they want out of the case anddevelop a strategy to accomplish their objectives. They understand that the mediation process is anegotiation involving a series of “give and take” steps. When theparties are engaged in this “dance” of negotiation, they recognizethese steps are part of the etiquette or protocol of the process,in which one party is expected to make a “demand” and the otherparty is expected to respond with an “offer.” While this may nothappen in every case, frequently it does. The dance of negotiationwill consist of a series of demands and counteroffers. Experiencednegotiators understand this and prepare accordingly. They knowwhere they want to begin and where they would like to end up, andthey develop a flexible strategy for getting to thisdestination.

9. Minding Your Ps AND Qs: “Attack the Problem, Not thePeople”

Effective mediation advocates focus on finding solutions totheir shared problems. Screaming at the other party may let offsteam, but it is not conducive to joint problem-solving. Effectiveadvocates are courteous and tactful. They are also polite, patient,persistent and positive in their approach to negotiating. Theyrecognize it is important to treat the other parties with dignityand respect. Effective advocates understand that the otherparticipants should be treated as allies, rather than enemies.

Negotiating partners can persuade others within theirorganizations to accept their settlement proposals. As allies, theycan sell the deal. If these parties are treated as hostile enemies,they also have the ability to sink any proposed deal. Effectiveadvocates are prepared to explain, document and justify to theirnegotiating partners the reasons why they should accept theirproposals.

David Frost said, “Diplomacy is the art of letting somebody elsehave your way.” Isaac Goldberg stated, “Diplomacy is to do and saythe nastiest things in the nicest ways.” Famed humorist Will Rogersremarked: “Diplomacy is the art of saying ‘nice doggie’ until youcan find a rock.”

These are all wonderful words of advice by which to live andnegotiate. By being tactful, courteous, considerate and respectful,effective advocates are able to get others to listen to what theyhave to say, which is the first step on the road to resolution.

10. Closing the Deal: “Handshakes Are Nice, but Put itin Writing.”

In a successful mediation, the parties and their counselexercise patience and self-control. They understand that in manycases it will take time to settle a dispute. In cases that areemotionally charged or technically complex (almost all), it maytake several hours to unravel and identify numerous issues andareas that have taken years to litigate. By patiently workingthrough these issues calmly and carefully, parties frequently areable to resolve their differences. In a successful mediation, thecase is resolved only when the parties and their counsel are readyto settle.

Effective advocates understand there are no rules that prohibitthem from settling their disputes tomorrow, next week or somemonths after the initial mediation. They can use the initialmediation session as an opportunity to begin a dialogue. Theydevelop a positive exchange of communication during that sessionand build upon this initial rapport. They can establish a frameworkfor future negotiations that may result in resolution. Enlightenednegotiators view mediation as an ongoing process, not a one-timeevent. At the conclusion of a session, they do not issue threats orultimatums, or storm out of the conference room indignantly.Rather, they politely shake hands and encourage futureconversations.

When they do reach resolution, effective advocates take a momentto celebrate the success of this achievement and then get down tothe important business of memorializing the terms and conditions ofthe parties’ agreement. They fully understand that a mediatedsettlement agreement must be memorialized (in Florida) in order tobe binding and enforceable.14 The drafting process can often beslow, laborious and tedious, but effective advocates understandthat they must take as much time as necessary to spell out clearlywhat has been agreed by the parties and their counsel.Increasingly, effective mediation advocates are taking their laptopcomputers with them to mediation conferences in order to useboilerplate settlement agreements and releases as templates thatcan be modified to meet the specific needs, terms, and conditionsof the parties’ mediated settlement agreements.

In construction, cornerstones support the foundations upon whichthe tallest skyscrapers are built. Similarly, the cornerstonesdescribed in this article will support attorneys’ advocacy duringthe mediation process and help them and their clients to buildsatisfying mediation experiences, often yielding satisfyingresolutions.