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

In part 1 of this series, we introduced five qualities commonly possessed by attorneys who are successful as advocates in the mediation process. We simultaneously identified ways attorneys can unknowingly sabatoge the same process. Here, we expound upon that framework with a candid discussion about what helps and hinders dispute resolution.

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

As all seasoned mediation advocates know, proper management of client expectations begins at the start of the attorney-client relationship. Once an attorney begins to understand the basic facts of the case and analyzes the applicable legal theories, it is time to craft a preliminary assessment of the case. It may be necessary to conduct some discovery and investigation before reaching any final conclusions. While some exploratory discovery is a necessity, confirmatory discovery may be overkill and should be avoided in certain instances.

Throughout the management of a case, counsel should repeatedly advise the clients of the strengths and weaknesses of the case and explain what a realistic adjudicated outcome might be. Attorneys also must explore with their clients what their true interests and needs are, rather than focusing on their legal rights and positions. A discharged employee may prefer reinstatement and an apology, rather than money. The interests, needs, motivations, concerns and reasons for each client are unique. There is no one right solution to each client’s problem, and an attorney should help each client to understand what is actually wanted and needed as an acceptable resolution to each dispute.

Attorneys need to explain thoroughly to their clients that the lawyers’ role in mediation will differ from their role in litigation. Lawyers who fail to take the time to do this will find their clients are disappointed with their performances at mediation – that they were “too soft” or weak in their presentations. Lawyers should emphasize to their clients that certain outcomes that cannot be obtained through a trial can be achieved through mediation. This explanation should encourage the clients to be engaged and invested in the mediation process.

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

Lawyers should work with mediators to establish objective criteria that support the parties’ negotiating positions and proposals. Clients will need ongoing encouragement and reassurance throughout the negotiating process. Attorneys can model patience, professionalism, and calm for their clients, keeping them focused and on task. Patience truly is a virtue in helping clients to obtain what they want and deserve.

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

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

Similarly, if they know clients must pick up children from school in the afternoon, mediations will be scheduled so that ample time is allowed for these important responsibilities. An anxious parent preoccupied with leaving a child stranded at school may be too distracted to fully concentrate during the mediation process. Similarly, effective mediation advocates also will allow for some extra time to get from morning motion calendars to mediation sessions, as these hearings will not always end precisely on time. Through the years, mediations have unraveled before they even started because some participants felt disrespected as a result of delays.

8. Doing the Dance: “Mediation Is Assisted Negotiation”

In a successful mediation, the parties and their counsel are effective negotiators. They know what they want out of the case and develop a strategy to accomplish their objectives. They understand that the mediation process is a negotiation involving a series of “give and take” steps. When the parties are engaged in this “dance” of negotiation, they recognize these steps are part of the etiquette or protocol of the process, in which one party is expected to make a “demand” and the other party is expected to respond with an “offer.” While this may not happen in every case, frequently it does. The dance of negotiation will consist of a series of demands and counteroffers. Experienced negotiators understand this and prepare accordingly. They know where they want to begin and where they would like to end up, and they develop a flexible strategy for getting to this destination.

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

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

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

David Frost said, “Diplomacy is the art of letting somebody else have your way.” Isaac Goldberg stated, “Diplomacy is to do and say the nastiest things in the nicest ways.” Famed humorist Will Rogers remarked: “Diplomacy is the art of saying ‘nice doggie’ until you can find a rock.”

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

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

In a successful mediation, the parties and their counsel exercise patience and self-control. They understand that in many cases it will take time to settle a dispute. In cases that are emotionally charged or technically complex (almost all), it may take several hours to unravel and identify numerous issues and areas that have taken years to litigate. By patiently working through these issues calmly and carefully, parties frequently are able to resolve their differences. In a successful mediation, the case is resolved only when the parties and their counsel are ready to settle.

Effective advocates understand there are no rules that prohibit them from settling their disputes tomorrow, next week or some months after the initial mediation. They can use the initial mediation session as an opportunity to begin a dialogue. They develop a positive exchange of communication during that session and build upon this initial rapport. They can establish a framework for future negotiations that may result in resolution. Enlightened negotiators view mediation as an ongoing process, not a one-time event. At the conclusion of a session, they do not issue threats or ultimatums, or storm out of the conference room indignantly. Rather, they politely shake hands and encourage future conversations.

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

In construction, cornerstones support the foundations upon which the tallest skyscrapers are built. Similarly, the cornerstones described in this article will support attorneys’ advocacy during the mediation process and help them and their clients to build satisfying mediation experiences, often yielding satisfying resolutions.

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10 Cornerstones of Mediation Advocacy - Part 2

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