What constitutes effective mediation advocacy? Litigation lawyers in an ever-increasing number of jurisdictions around the world understand that mediation is becoming or has become the primary dispute resolution forum and thereforenaturally are interested in acquiring and enhancing the knowledge and skills necessary to effectively represent their clients in the mediation process.
Earlier this year the International Mediation Institute addressed this issue when it released its “IMI Mediation Advocacy Competency Criteria“.
Now, Osgoode Hall Law School in Toronto, Canada is presenting what promises to be a very interesting and dynamic two-day course on Mediation Advocacy, December 10th and 11th. The Course program can be seen here and it will be noted that not only has every effort been made to gather leading practitioners of the Ontario plaintiff and defence bar (not to mention, (modestly) some of the most in-demand mediators in this province) but that the Course design incorporates a dynamic collection of teaching techniques including video demonstrations, group discussions and role plays.
Your faithful blogger has been asked to participate in a panel discussion on Advocacy at the Mediation. The panel, consisting of a plaintiff counsel, defence counsel and mediator (also moderated by a mediator) has been asked to offer opinions on a series of questions. This is where I’m asking for your assistance.
Below you will see the actual questions the panel will be addressing. I’m asking you to offer your own thoughts on all or any of these questions in a line or two. I will then inject some of your comments into the panel discussion – with attribution (unless you note that you’d prefer me not to name you). So, without further ado, here are the questions. Thanks in advance for your responses:
- Is there a tactical role for the apology in mediation?
- First offers: high- or low-ball and where will each get you? How best to “return serve” when such offers are made?
- How to avoid being manipulated or drawn into replicating the other side’s unproductive or aberrant behaviours
- Maintaining credibility throughout the mediation – how will your offer/response style likely
- impact on your credibility with your client, with opposing counsel, with the opposing counsel’s client and with the mediator?
- Playing tough/scare tactics/threatening to walk out
- Showing up without the client/deals made “subject to ratification”
- What does “final offer” really mean?
- Using mediation for ulterior purposes
- Mediation as a dress rehearsal for trial
- Should you let your client speak?
- Negotiations in caucus
- Is it ever necessary to lie to the mediator?
- How to use the mediator most effectively
- Issues relating to the use of demonstrative evidence, technological aids, medical illustration, attendance of expert lay witnesses by video, etc.
- Dealing with troublesome situations, such as when plaintiff’s counsel seeks to insulate the client
- from the mediator.
Dear reader, if you have any other comments don’t hesitate to add them below.
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Rick, thanks for your outreach on these questions. From my experience as mediator and counsel primary in international commercial mediations, I would offer just a few comments as follows:
– Showing up without the client/deals made “subject to ratification”: As mediator, I always ask counsel to be sure they and/or their clients come to the mediation with full authority to enter into a settlement. If they cannot, I postpone the mediation until they obtain it.
– Mediation as dress rehearsal for trial: If I as mediator sense that counsel have no other purpose but this, I talk with them privately to encourage them to make good faith efforts to negotiate as well.
– Should you let your client speak? This question goes to the heart of who controls the mediation: counsel, the clients, the mediator, or the institution? My view is that mediation is ultimately a mechanism controlled by the client. If the client wants to speak and unless there is some extraordinary reason to the contrary, I believe the client should be able to do so. I have seen commercial cases resolved in mediation when the clients were able to speak freely and vent their frustrations, after which they understood each others’ situations better and reached accord.
– Demonstrative evidence/technological aids – By all means. As counsel for the Brazilian party, I arranged and participated in an international mediation several years ago conducted entirely by videoconference between sites in São Paulo, New York and Washington,, with the case resolved.
I have been a full-time mediator in Los Angeles for over 20 years, and I shudder at some of the questions you have been asked to address. I should explain that my concern stems from the fact that litigators here are in their “post-modern” mediation period–they have become expert at trying to spin the mediator, control the process, manipulate all the other stakeholders, feign anger when they are pleased & vice versa. And, perhaps not coincidentally, settlement rates at mediation have dropped, as more litigators treat the process as just another step on the way to trial, or future settlement discussions. So when I see that the first question is whether there is a tactical role for an apology, and other questions are “Should you let your client speak” and “What does final offer really mean?” I fear that Canada’s mediation process is on its way to becoming like ours in LA–just a steppingstone. What makes me saddest about this turn of events is that it is the clients–particularly those who are not sophisticated business users–who have lost the most from the delay in dispute resolution.