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20 Common Errors in Mediation Advocacy

By Tom Arnold

Trial lawyers who are unaccustomed to being mediation advocates often miss important arguments. Here are 20 common errors, and ways to correct them.

• Problem 1: Wrong client in the room
• Problem 2: Wrong lawyer in the room
• Problem 3: Wrong mediator in the room
• Problem 4: Wrong case
• Problem 5: Omitting client preparation
• Problem 6: Not letting a client open for herself
• Problem 7: Addressing the mediator instead of the other side
• Problem 8: Making the lawyer the center of the process
• Problem 9: Failure to use advocacy tools effectively
• Problem 10: Timing mistakes
• Problem 11: Failure to Iisten to the other side
• Problem 12: Failure to identify perceptions motivations
• Problem 13: Hurting, humiliating, treating, or commanding
• Problem 14: The backwards step
• Problem 15: Too many people
• Problem 16: Closing too fast
• Problem 17: Failure to truly close
• Problem 18: Breaching a confidentiality
• Problem 19: Lack of patience and perseverance
• Problem 20: Misunderstanding conflict


Problem 1: Wrong client in the room

CEOs settle more cases than vice presidents, house counsel or other agents. Why? For one thing, they don’t need to worry about criticism back at the office. Any lesser agent, even with explicit “authority,” typically must please a constituency which was not a participant in the give and take of the mediation. That makes it hard to settle cases.

A client’s personality also can be a factor. A “Rambo,” who is aggressive, critical, unforgiving, or self-righteous doesn’t tend to be conciliatory. The best peace-makers show creativity, and tolerance for the mistakes of others. Of course, it also helps to know the subject.


Problem 2: Wrong lawyer in the room

Many capable trial lawyers are so confident that they can persuade ajury of anything (after all, they’ve done it before), that they discount the importance of preserving relationships, as well as the exorbitant costs and emotional drain of litigation. They can smell a “win” in the court room, and so approach mediation with a measure of ambivalence.

Transaction lawyers, in contrast, tend to be better mediation counsel. At a minimum, parties should look for sensitive, flexible, understanding people who will do their homework, no matter theirjob experience. Good preparation makes for more and better settlements. A lawyer who won’t prepare is the wrong lawyer.


Problem 3: Wrong mediator in the room

Some mediators are generous about lending their conference rooms but bring nothing to the table. Some of them determine their view of the case and urge the parties to accept that view without exploring likely win-win alternatives.

The best mediators can work within a range of styles that Leonard L. Riskin developed in a recent issue of Allernatzues (September 1994 at p. 111). As Mr. Riskin described them, these styles fall along a continuum, froni being totally facilitative, to offering an evaluation of the case. Ideally, mediators should fit the mediation style to the case and the parties before them, often moving from style to style as a mediation progresses.

Masters of the process can render valuable services whether or not they have substantive expertise. When do the parties need an expert? When they want an evaluative mediator, or someone who can cast meaningful lights and shadows on the merits of the case and alternative settlements.

It may not always be possible to know and evaluate a mediator and fit the choice of mediator to your case. But the wrong mediator may fail to get a settlement another mediator might have finessed.


Problem 4: Wrong case

Almost every type of case, from antitrust or patent infringement to unfair competition and employment disputes, is a likely candidate for mediation. Occasionally, cases don’t fit the mold, not because of the substance of the dispute, but because one or both parties want to set a precedent.

For example, a franchisor that needs a legal precedent construing a key clause that is found in 3,000 franchise agreements might not want to submit the case to mediation. Likewise, an infringement suit early in the life of an uncertain patent might be better resolved in court; getting the Federal 1 Circuit stamp of validity could generate industry respect not obtainable from ADR.


Problem 5: Omitting client preparation

Lawyers should educate their clients about the process. Clients need to know the answers to the types of questions the mediator is likely to ask. At the same time, they need to understand that the other party (rather than the mediator) should be the focus of each side’s presentation.

In addition, lawyers should interview clients about the client’s and the adversary’s “best alternative to negotiated agreement,” and “worst alternative to negotiated agreement,” terms coined by William Ury and Roger Fisher in their book, Getting to Yes. A party should accept any offer better than his perceived BATNA and reject any offer seen as worse than his perceived WATNA. So the BATNAs and WATNAs are critical frames of reference for accepting offers and for determining what offers to propose to the other parties. A weak or false understanding of either party’s BATNA or WATNA obstructs settlements and begets bad settiements.

Other topics to cover with the client:

  • the difference between their interests and their legal positions;
  • the variety of options that might settle the case;
  • the strengths and weaknesses of their case;
  • objective independent standards of evaluation;
  • the importance of apology and empathy.


Problem 6: Not letting a client open for herself

At least as often as not, letting the properly coached client do most, or even all, of the opening and tell the story in her own words works much better than lengthy openings by the lawyer.

To prepare for mediation, rehearse answers to the following questions, which the mediator is likely to ask:

  • How do you feel about this dispute — Or about the other party?
  • What do you really want in the resolution of this dispute?
  • What are your expectations from a trial? Are they realistic?
  • What are the weaknesses in your case?
  • What law or fact in your case would you like to change?
  • What scares you most?
  • What would it feel like to be in your adversary’s Shoes?
  • What will the jury charge and interrogatories probably be?
  • What is the range of a verdict your way on liability?
  • What are the likely settlement structures from among the following possibilities: Terms, dollars, injunction, service, performance, product, recision, apology, costs, attorney fees, releases.
  • What constituency pressures burden the other party? Which ones burden you?


Problem 7: Addressing the mediator instead of the other side

Most lawyers open the mediation with a statement directed at the mediator, comparable to opening statements to a judge or jury. Highly adversarial in tone, it overlooks the interests of the other side that gave rise to the dispute.

Why is this strategy a mistake? The “judge or jury” you should be trying to persuade in a mediation is not the mediator, but the adversary. If you want to make the other party syiripathetic to your cause, don’t hurt him.

For the same reason, plenary sessions should demonstrate your client’s humanity, respect, warmth, apologies and sympathy. Stay away from inflammatory issues, which are better add by the mediator in private caucuses with the other side.


Problem 8: Making the lawyer the center of the process

Unless the client is highly unappealing or inarticulate, the client should be the center of the process. The company representative for the other side may not have attended depositions, so is unaware of the impact your client could have on a judge or jury if the mediation fails. People pay more attention to appealing plaintiffs, so show them off.

Prepare the client to speak arid be spoken to by the mediator and the adversary. He should be able to explain why he feels the way he does, why he is or is not responsible, and why any damages he caused are great or only peanuts. But he should also extend empathy to the other party.


Problem 9: Failure to use advocacy tools effectively

You’ll want to prepare your materials for maximum persuasive impact. Exhibits, charts, and copies of relevant cases or contracts with key phrases highlighted can be valuable visual aids. A 90-second video showing key witnesses in depositions making important admissions, followed by a readable size copy of an important document with some relevant language underlined, can pack a punch.


Problem 10: Timing mistakes

Get and give critical discovery, but don’t spend exorbitant time or sunis in discovery and trial prep before seeking mediation.

Mediation can identify what’s truly necessary discovery and avoid unnecessary discovery. One of my own war stories: With a mediation under way and both parties relying on their perception of the views of a certain vice president, I leaned over, picked up the phone, called the vice president, introduced myself as the mediator, and asked whether he could give us a deposition the following morning. “No,” said he, “I’ve got a Board meeting at 10:00.”

“How about 7:30 am., with a onehour limit?” I asked. “It really is pretty important that this decision not be delayed.” The parties took the deposition and settled the case before the 10:00 board meeting.


Problem 11: Failure to Iisten to the other side

Many lawyers and clients seem incapable of giving open-minded attention to what the other side is saying. That could cost a settlement.


Problem 12: Failure to identify perceptions motivations

Seek first to understand, only then to be understood. Messrs. Fisher and Ury suggest you brainstorm to determine the other party’s motivations and perceptions. Prepare a chart summarizing how your adversary sees the issues (see chart, page 71).


Problem 13: Hurting, humiliating, treating, or commanding

Don’t poison the well from which you must drink to get a settlement. That means you don’t hurt, humiliate or ridicule the other folks. Avoid pejoratives like “malingerer,” “fraud, ” “cheat, ” “crook,” or “liar.”You can be strong on what your evidence will be and still be a decent human being.

All settlements are based upon trust to some degree. Ifyou anger the other side, they won’t trust you. This inhibits settlement.

The same can be said for threats, like a threat to get the other lawyer’s license revoked for pursuing such a frivolous cause, or for his grossly inaccurate pleadings.

Ultimatums destroy the process, arid destroy credibility. Yes, there is a time in mediation to walk out-whether or not you plan to return. But a series of ultimatums, or even one ultimatum, most often is very counterproductive.


Problem 14: The backwards step

A party who offered to pay $300,000 before the mediation, and comes to the mediation table willing to offer only $200,000, injures its own credibility and engenders bad feelings from the other side. Without some clear and dramatic reasons for the reduction in the offer, it can be hard to overcome the damage done.

The backwards step is a powerful card to play at the right time-a walk away without yet walking out. But powerful devices are also dangerous. There are few productive occasions to use this one, and they tend to come late in a mediation. A rule of thumb: unless you’re an expert negotiator, don’t do it.


Problem 15: Too many people

Advisors—people to whom the decision- maker must display respect and courtesy, people who feel that since they are there they must put in their two bits worth-all delay a mediation immeasurably. A caucus that with only one lawyer and vice president would take 20 minutes, with five people could take an hour and 20 minutes. What could have been a one-day mediation stretches to two or three.

This is one context in which 1 use the “one martini lunch.” Once I think that everyone present understands all the issues, I will send principals who have been respectful out to negotiate alone.

Most come back with an expression of oral settlement within three hours. Of course, the next step is to brush up on details they overlooked, draw up a written agreement and get it signed. But usually those finishing touches don’t ruin the deal.


Problem 16: Closing too fast

A party who opens at $1 million, and moves immediately to $500.000, gives the impression of having more to give. Rightly or wrongly, the other side probably will not accept the $500,000 offer because they expect more give.

By contrast, moving from $1 million to $750,000, $600,000, $575,000, $560,000, $550,000, sends no message of yield below $500,000, and may induce a $500,000 proposal that can be accepted.

The “dance” is part of communication. Skip the dance, close the communication, and risk losing settlement at your own figure.


Problem 17: Failure to truly close

Unless parties have strong reasons to “sleep on” their agreement, to further evaluate the deal, or to check on possibly forgotten details, it is better to get some sort of enforceable contract written and signed before the parties separate. Too often, when left to think overnight and draft tomorrow, the parties think of new ideas that delay or prevent closing.


Problem 18: Breaching a confidentiality

Sometimes parties to a mediation unthinkingly, or irresponsibly, disclose in open court information revealed confidentially in a mediation.

When information is highly sensitive, consider keeping it confidential with the mediator. Or if revealed to the adversary in a mediation where the case did not settle, consider moving before the trial begins for an order in limine to bind both sides to the confidentiality agreement.


Problem 19: Lack of patience and perseverance

The mediation “dance” takes time. Good mediation advocates have patience and perseverance.


Problem 20: Misunderstanding conflict

A dispute is a problem to be solved together, not a combat to be won.

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The "European Mediation Academy" (emeac) was approved as an IMI Qualifying Assessment Program by the International Mediators Institute (IMI)  in January 2019. 

Victor Schachter, a well-known business mediator and distinguished ex-lawyer from the United States, a great partner Law Firm Fenwick & West LLP, Silicon Valley, California and President of the "Foundation for Sustainable Rule of Law Initiatives"  was spüeaking in Zagreb about the chance for attornes to see mediation as an opportunity. He made it interesting, attractive, straightforward and clear for Croatian lawyers how mediation can simultaneously increase the profitability and satisfaction of attorneys in everyday work.

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