The Mediator Can Be an Advocate's Strongest Ally
Robert M. Smith, Esq.
This article originally appeared in San Francisco
(© Robert M. Smith, Esq. 1998)
The Nuer are a tribe of pastoral nomads who herd cattle along the flatlands of Ethiopia and the Sudan. The Nuer fight over such things as cattle theft, adultery and watering rights in the dry seasons. See Sally Engle Merry, "Mediation in Nonindustrial Societies" in Kenneth Kressel et al., "Mediation Research" (Jossey-Bass 1989).
The Nuer have as their mediator the leopard-skin chief. He can mediate only if the parties want to, and he cannot stop the parties from ultimately using violence to settle things. The leopard-skin chief has only one power. He can curse the party who refuses to accept a reasonable settlement. The threat is that supernatural forces will help the stubborn party's enemies if he persists.
American mediators generally lack the power of the leopard-skin chief. That said, the advocate's strongest ally - if the lawyer can make him an ally - is the mediator. It is the mediators neutral voice that is most powerful in carrying the lawyers argument to the other side. This is true even if all the mediator does is ask a lawyer to put on the chalkboard his strongest points, then unveils the board to the other side.
The mediator knows the lawyers could be trying to manipulate. But the mediator is usually aware of such manipulation. Good advocates know when to stop trying to manipulate, show some trust and make a straighter and more reasonable, argument. Honesty can buy an advantage.
When parties go to a commercial mediation, there is - statistically something like an 80 percent chance of settling the case. See Jeanne Brett et al., "Research Report - The Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers," Negotiation journal 259-69 (July 1996). This means the lawyer should probably act as if the mediation session will be the last step in the case and prepare the client accordingly. To tell the client for example, that "we are just going through the motions" and then encounter a circumstance of serious endgame bargaining is not prudent.
Often lawsuits bobble along like a play in search of a theater; they need a defining event before both parties and lawyers get serious. Mediation can be such an event. If the mediator is effective, everyone will focus on the matter in a way that they haven't before. That is one reason mediations are successful. Cellular phones are impolite; authority is - or should be - present; executives are burning up time; folks are spending money for the time of the mediator and the lawyers.
The mediation is the time for the lawyer to do his best brief. Mediators read them; they get paid to. And this is all they know about the case before the lawyers troop in. The mediator is likely to ensure that the parties, as well as the lawyers, see the briefs and consider the most forceful arguments, or what a neutral sees as the most forceful arguments. It may be worth considering the impact on the other side when sections of the brief are pointed out to them.
The lawyer should consider whether to give a copy of the brief to the other side, as well as to the mediator. There is no requirement that the parties give each other their briefs. The decision of whether or not to exchange briefs involves weighing many considerations: free discovery vs. the power of the clients case or the weakness of the other side's; disclosure of expected testimony, a preview of the jury summation. The advocate can give only a portion of the brief to the other side - or the whole brief, but with a "secret" annex going to the mediator and discussing material that the attorney does not want the other side to know. The process is what disputants and lawyers make of it. Flexible, it bends to imaginative sculpting.
Sometimes mediations do not immediately end in resolutions. The advocate ought not to give up. The mediator won't if the mediator is worth his salt Since the lawyer can just pick up the telephone and call the mediator without the other side knowing – or the mediator can privately call the lawyers - the negotiations can continue until another session or until resolution. Good mediators continue to keep trying to assist the disputants to reach a resolution.
The mediation can be the stage for displaying the hurt, credibility, charm and jury appeal of the client. And the clients can talk directly to one another across the table. Like trial, this is a lawyer's drama; scripts and rehearsals are available. But so are first night jitters.
Sometimes during a mediation the lawyers and the client will find themselves in some particle-board and tubular-steel room with coffee and newspapers, just waiting. This is time well spent. Timing, rhythm and pace are all important in mediation. Catharsis can take a while; so can acceptance.
The mediation experience can bring to the surface issues that are not in the pleadings. Sometimes these are the true issues between the disputants. The mediator works hard to keep sitting and find what is really going on. It takes time to release meticulously suppressed issues. But when they surface, the mediation can on the fast track to a satisfying resolution.
While money is to this society what cattle and water are to the Nuer, noneconomic considerations can play a remarkable role in commercial mediation. Some have pointed out the power of an apology, appropriately timed and tendered. But advocacy may also involve asking for a noneconomic concession - even one the advocate knows he likely will not get. It may put other demands in a new, or reframed, perspective.
Once discussions have foundered, the mediator knows that, of the people in the room, the parties are not likely to move on their own. It is up to the mediator to step back and find a new perspective or approach. The lawyer should anticipate the possible reframing, or the mediators new perspective may be suddenly unfamiliar and disconcerting.
When discussions bog down after hours of negotiation - usually about 5 p.m. - the role of imagination is sometimes called into play in mediations. The mediator had best not have lost his imagination in the second year of law school; part of what the disputants are paying for is creativity. But when the clock strikes or beeps - in a soundless room, the lawyers own imaginative suggestion may prove sublime advocacy.
Finally, the suggestion has been made that even commercial mediation can be a transformative experience for the parties. By allowing the parties to understand, through the mediator and the process, the positions of others, and by shifting their perspectives - not to mention their demands and offers - the dispute resolution process may have taught not just chastened.
Advocacy in mediation is likely to become more important probably in the near term, certainly in the longer term. This is because business people forced the development of arbitration; they are now likely to compel the further development and wider use of mediation. The software industry already appears to be leading this effort with the Software Publishers Association's new Software Industry Mediation Service.
Mediation will therefore likely follow trends in commerce. Since business is increasingly transnational, mediation will be so too. This means mediation will become increasingly cross-cultural. Business people say they often have trouble making cross-cultural deals; anyone in Silicon Valley has the equivalent of a laptop full of war stories. Settling problems resulting from those cross-cultural deals can be even harder. Corporate disputants will demand new levels of sophistication, both from mediators and from advocates in the process.
Disputants may increasingly seek out practitioners who have experience with other legal systems, cultures and language skills, a background in the conduct of transnational business and a familiarity with diverse negotiating styles. They may also demand experience and expertise in representing clients in mediation and other forms of alternative dispute resolution, just as they now sometimes ask about trial experience.
As for the process of resolving disputes, by mediation and otherwise, attorneys may find themselves taking fewer jets hither and yon. Negotiation, advocacy and mediation may begin to mimic telecommuting styles by embracing secure - perhaps simultaneously translated - caucusing on the Web. There already is an online ombuds-site for disputes involving electronic commerce. See http://184.108.40.206/center/ombuds/.
The corollary is that this art form - advocacy in mediation - is likely to receive attention in law schools that have in the not-distant past added trial advocacy and clinical courses. As the alternative becomes the corporate norm, what has been seen as faddish will become essential.
Robert M. Smith, a full-time commercial mediator and arbitrator in San Francisco, is on the national panel of the American Arbitration Association and author of "ADR for Financial Institutions" (West 1988). He was senior litigation counsel for Bank of America and special assistant to the U.S. attorney general.