Bridging the divide between lawyers and mediators, Part 3: what lawyers can do for mediators
My series on "Bridging the divide between lawyers and mediators" continues with an appreciation for the value lawyers contribute to the mediation table.
In the many conversations I have had with mediators over the years about the role of lawyers at the mediation table, one thing has sadly stood out: the extent to which many mediators distrust attorneys and misconstrue their motives. They see attorneys as sources not healers of conflict and view them as obstacles to resolution.
As a mediator who is also an attorney, I have to say that this is unfortunate and short-sighted. My observations tell me that these stereotypes are often based on misunderstanding of lawyers' roles, of the ethical duties that constrain or define their conduct, and of the culture of the legal system itself.
I know that what I have just written may provoke protests from mediators who insist that their criticism of attorneys is warranted. No doubt many of you have war stories that prove it. However, I am not claiming that lawyers--or anyone else for that matter--are always team players at the mediation table or that they never get aggressive, play dirty, or try to exploit or sabotage the mediation process.
What I am saying however is something quite different. War stories aside, it's important not to assume how someone may behave at the mediation table solely because they happen to have a bar card.
I am asking all of my colleagues who are mediators to think of attorneys in another light: to recognize them as valuable assets at the mediation table.
To begin with, although some lawyers continue to rely on distributive bargaining, more lawyers these days are familiar with more sophisticated negotiation techniques, including integrative, interest-based negotiation. Many are trained in mediation themselves, were exposed to mediation in law school, or have undergone training in mediation advocacy. The legal profession is changing as well, and lawyers are breaking new ground through movements like collaborative law, restorative justice, and legal futurism. Even lawyers who are old-school hard bargainers can still be assets at the table when mediators take time to prepare all parties to make the most of the mediation process before the mediation even begins.
That's the big picture. Here now are specific ways in which lawyers can make a positive difference to what happens at the mediation table.
Preparedness for mediation. More and more attorneys these days understand and appreciate mediation. Attorneys like this can transmit this understanding to their clients, preparing and coaching them to take full advantage of what mediation offers.
Informed decisions. As mediators know well, one of the foundational principles of mediation is informed decision-making by parties. In fact, mediations can easily stall out when parties lack critical information. To participate meaningfully in the process, parties should understand fully the mediation process itself, the issues involved, options for settlement, and the alternatives that await the parties in the event that no agreement is reached. Attorneys at the table can provide their clients with the advice and information they need to make the most of mediation.
Helping clients participate. A good attorney will know and understand their client's interests and can help their client communicate those interests clearly.
Creative problem-solving. This works two ways. First, lawyers can be skilled problem solvers--it's a part of their job. Secondly, there's the "two heads are better than one" phenomenon--an attorney and their client can work together to brainstorm solutions, bouncing ideas off each other and fine-tuning options with the mediator's help.
Offset power imbalances. Power imbalances can easily throw a mediation off course. The presence of attorneys at the mediation table can act as a safeguard to ensure that each party is able to make decisions free from intimidation, influence, or pressure by the other.
Size up the no-agreement alternative. Attorneys can help their clients strategically assess their BATNA--their best alternative to a negotiated agreement. "Best" of course may not mean "good". If the BATNA is trial, attorneys know from experience the probability of success in court and how much time trial--with the possibility of appeal--may realistically take.
Make decisions. Attorneys can assist their clients evaluate options on the table and weigh the merits of settlement proposals.
Look for the devil in the details. After all the hard work that goes in to a mediation, no one wants a mediated agreement to fall apart later. A critical role that lawyers can and do play is to make sure that no details in an agreement have been left to chance and double-check that contingencies get addressed and ambiguities cleared up.