Bridging the divide between lawyers and mediators, Part 2: what mediators can do for lawyers
Posted by: Diane Levin in Attorneys and Mediators, Mediation, Mediation in Practice
My series on “Bridging the divide between lawyers and mediators” continues with a look at the advantages that mediation offers attorneys.
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Alternative dispute resolution (ADR) is here to stay. Courts refer litigants to it or may even require it, more businesses include it in contractual agreements, and savvy clients demand it.
Mediation in particular has grown in popularity as a time-saving, cost-effective way to resolve disputes in mutually satisfying ways and get people back to work, back to business, or back to their lives.
Regardless of the stage of a dispute–whether it’s already in litigation or not there yet–mediation can make a difference. But what specifically does mediation offer the lawyer? Quite a lot, as it turns out:
1. A framework to negotiate.
Back in the day when I was in law school, we were taught trial skills. This was deeply ironic, since it quickly became apparent when I began work as a lawyer that the real focus of my practice wouldn’t be trial at all. The real focus was negotiation–bargaining with the other side to reach settlement. The problem though is that most of us don’t have any real training in negotiation, and consequently we don’t always do it very well. We treat negotiation as a take-no-prisoners death match, or we come to the table expecting to give a little, get a little, and both walk away equally unhappy. The first of these approaches is notorious for damaging trust and destroying good will. And both these approaches leave value on the table and stifle creativity in designing settlement options.
Here’s where a mediator can help. The best mediators are negotiation experts who understand how to turn the parties into more effective negotiators. Mediation is not about holding hands and singing “Kumbaya”. It’s about getting your interests met and maximizing your gain–yours and the other side’s. If you don’t want to leave value on the table, if satisfaction counts, hire a mediator who understands negotiation.
2. Focus and structure.
Good mediators are skilled facilitators who run a mediation like an efficient business meeting. They have the ability to cut through the sparring, posturing, and argumentativeness to help parties get down to business. They push parties to develop an agenda, identify key interests, and create a realistic action plan which both can commit to and implement.
3. Reality testing for clients.
One of the challenges attorneys can face is the client with unrealistic expectations about the value of their cases or the likelihood of success at trial. Mediation allows clients a first-hand glimpse into the strengths of the case of the opposing side or gives a preview of how sympathetic a plaintiff will be in court. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis–which can make settlement seem far more attractive than the alternatives away from the table.
4. Reality testing for the other side.
Mediators of course will be asking the hard questions of all sides in a dispute, not just the one you happen to be on.
5. Overcoming barriers to agreement.
Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It’s part of our job description.
6. Negotiation skills you can use.
There’s no reason you can’t raid a mediator’s toolbox. You can learn to become a more effective negotiator and problem-solver. Take a negotiation training or hire a dispute resolution professional to design an onsite negotiation training for your law firm. Take a mediation training yourself to gain an insider’s view of the process and insights you can pass on to your clients to help them–and you–make the most of mediation.
7. Greater satisfaction for your client.
What’s not to like about a process that can save your client time and money and enable them to walk away with a solution tailor-made to meet their interests? In addition, in a time when ADR will be increasingly available and not less, being conversant in ADR and negotiation can give you a competitive edge. It’s one more benefit you can offer your clients.
And that’s a win-win for everyone.
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January 27th, 2007 at 3:45 pm
Great post, Diane. I plan to write a post about it at DivorceLawJournal next week. Thanks for all you do to help all the rest of us do better for our clients. Diana Skaggs
January 31st, 2007 at 1:44 pm
OK, so Diane, I just finished your, and Tammy’s 4 part tele-seminar on “Building Buzz with Blogs” (highly recommended to others if it comes around again) and one thing you emphasized is that the blog community is meant to be a medium to explore ideas and communicate them. In that vein, I hope you won’t mind if I reflect on a couple of implied assumptions you made in your
post.
You said that a “Good mediator” will run a mediation and have the ability to “cut through the sparring, posturing, and argumentativeness to help parties to get down to business.” While I have no doubt that this can ultimately
benefit the parties, should the mediator be deciding to do this, or should this be done at the request of the parties? If a mediator chooses to honor the parties’ apparent desire to spar, posture and argue, is he or she a bad mediator, or just a mediator who chooses a different path towards honoring the self-determination of the clients? What role do the lawyers’ needs to
move toward settlement play in determining the manner in which the mediation will be conducted?
You also say that “Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It’s part of our job description.” What about the mediators who, again, choose to work in the direction of what the parties themselves perceive as important to seek out and address? Are they not working within the job description of a mediator?
My comments aren’t intended as a criticism of the problem solving model of mediation you’re reflecting, but rather a nudge towards the recognition that this model doesn’t necessarily define a “good” mediator, or the “mediator’s
job”. The concern that I have is that the needs of the lawyer and the legal system will unduly influence the needs of the parties as they see them, not as the lawyer sees them. Some believe that it is when those “non legal” needs are met, that true reconciliation can happen.
Perhaps, though, I’m just anticipating the points you’ll be making when you write about what lawyers can do for mediators in bridging the divide.