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Robert M. Smith, Esq.

This article originally appeared in The NCMA Quarterly Newsletter
( Robert M. Smith, Esq. 1998)

Ten Suggestions for mediators to make legal counsel

Take a deep breath. This article is not about transformative mediation. About facilitative mediation. About directive mediation. About mental-health professionals vs. attorneys. About mediator certification. About ethics. About cross-cultural mediation. About mediation marketing. About mediation on the Internet. About confidentiality. It's not even about the Samoan Circle.

This article is about how advocates in mediation can help make mediation work. I have developed Ten Suggestions. (In this field, we don't believe in commandments, except for the ones from On High.) I have taken them from my own experience and research, and from an exchange with the commercial mediation master Tony Piazza.

The Presence of Power

The final, ultimate, allpowerful decision-makers must be present. It is only slight exaggeration to say that if this suggestion is complied with, almost anyone can facilitate a successful result. But authority does not mean what was decided on in-house before the mediation. Authority in this sense means the ability to decide on any settlement terms, without limitations.

Put Your Wallet Away

Give thought to whether there are non-monetary issues. In a contract dispute, for example, it may occur at some point to one side that there may be a non-economic element to the resolution. That is not a good insight at midnight after a day of mediating. Figuring out that there is a non-monetary element and figuring out what it is may require brainstorming in a group and before people are tired. It may also require input from others back at the company, who may have different or wider views, or know what is possible. The advocate and the client should try to identify the universe of possible solutions in advance. Economic solutions tend to be simple, if painful. Counsel might consider broaching these possibilities to the other side in advance. Tossing these ideas out may itself lead to settlement.

Ink It

Counsel and client might try to figure out on paper how the economic and non-economic elements would get written down in a binding settlement document. In fact, they might bring a draft of a settlement agreement - something short that captures the main elements. It may avoid two or three hours of wrangling at 2 or 3 a.m. when tired and cranky people might be tempted to walk out and the agreement might benefit in complex negotiations, from the input of others who aren't at the mediation and may be tucked in bed in Grosse Point.


Have with you at the mediation documents that are the basis of any contention you are making or that will rebut the other side's position. This requires thought; you can't bring 20 file boxes. Counsel and client might want to ruminate together about what documents may prove critical. They are unlikely to include the Third Amended Complaint, or an expert report - the kind of documents that everybody routinely brings. But they may include a contemporaneous memo, or a copy of a pivotal legal decision.

Prisoners of the Past

The Docs suggestion leads to this question: Why would folks bring the Third Amended Complaint, but not a document that is hot as an August day in Amarillo? Because people - both counsel and client - are sometimes so fixed in their positions bom of four years of advocacy, month in and month out, that, incredibly, they lose sight of the significance of a particular document or they have accepted the oral history of the dispute given by the client's managers and executives, and that history describes the Doc in an unhelpful, or unrealistic, way.


Consider having at the mediation - or available by cell phone - anyone who might be an important percipient witness. This is the "live" corollary of the Doc suggestion. Counsel and client must again reflect widely to make an intelligent choice as to who should be at the mediation or available by cell phone. With the right cell phone, somebody in attendance can have all the phone numbers pre-programmed.

Just the Facts

Few things are more persuasive to the other side than allowing the mediator to call a witness or expert and say this is what he or she said.

Shanghai Kelly

On the subject of folks it would be helpful for you to have at the session, consider whom you might ask the mediator to request the other side to have present or available. You will have your folks there. You do not want to find out at the mediation that the other side does not.

No Offense

It is not advisable to anger the other side in joint session. It tends to make them not receptive to your reasonable suggestions. You can also go too far the other way: Being unctuous is not helpful.

In my first class many years ago at Yale Law School Professor Geoff Hazard made explicit the assumptions behind his use of the Socratic method. You might want to consider something like: We are going to take our best shot, and we'll listen while you take your best shot. We'd rather hear it here than before a third party. If you don't think we're listening closely enough, say it louder - tell us we aren't hearing it, or understanding it. We'll do the same thing.

Mea Medium Culpa

The power of apology by the company in, for example, a sexual harassment case can be considerable, if sincerely and credibly presented. It may be imprudent to say this is the worst thing this company has ever done. It may also be imprudent to suggest this was a minor oversight. Of course, counsel for the alleged victim might raise the possibility of an apology with the client before the mediation and suggest an appropriate response by client or counsel.

Mediation can reward imaginative advocacy.

Robert M. Smith is a San Francisco lawyer and English Solicitor who now practices mediation and arbitration full-time. He is on the National Panel of the American Arbitration Association and has served in the Carter Administration.