The ADR meeting in July, held at Hatch & Parent’s State
Street conference room, allowed an interesting discussion over important
issues, including what attorneys fear about mediation and how attorneys
should approach mediation.
Mediators present were Retired Judge Bruce Dodds, Nancy Warren, Colleen
Sterne, Judith Rubenstein and Kevin McIvers. Ann Gormican Anderson and
Heather Reed Streeter moderated the event.
Fear
When the issue of “fear of mediation” was presented, Judge
Dodds immediately offered, “there’s nothing to fear –
the mediator has no power – the mediator is only there to help
you.” Ms. Warren recognized that often there is a fear of disclosing
important components of the case, but the attorneys’ personal
preparation should help prevent inappropriately disclosing a weakness
too early. Ms. Sterne suggested that attorneys should hone their negotiation
skills, rather than their advocacy skills, and consider taking a course
in mediation or negotiation. Mr. McIvers highlighted a “terror”
that some plaintiffs’ attorneys have – that the mediator
take control of the attorneys’ clients. It’s important to
know your mediator’s style in advance, but Mr. McIvers’
practice is that if there is something awkward to say to the attorney,
the attorney is taken aside for a private meeting.
Ms. Rubenstein noticed that the least experienced attorneys appear
to fear the most in a mediation setting. In that case, the mediator
acts to educate the lawyers about the process and coach the negotiation.
Ms. Warren reminded that it is often best to go with the other side’s
suggestion of a mediator – you will know that they will have confidence
in that person. Mr. McIvers also mentioned that sometimes fear is warranted
and at that point, it is prudent to call the mediator in advance and
tell him or her what you want and don’t want and/or what the client
wants/needs to experience. Judge Dodds emphasized that the more information
that the mediator has, the more he or she can help!
Approach
In approaching mediation, Ms. Sterne stated simply: “Know a lot
about your case, and if you don’t know something, set the mediation
down stream.” Ensure all discovery and preparation are done. Ms.
Sterne echoed that you should consider talking with the mediator in
advance of the mediation - you may learn that there is something that
needs to be evaluated or discovered to make the mediation more effective.
Ms. Rubenstein explained that the attorney has to act as a counselor
and probe to determine the true interests of the client. She believed
it was helpful to prepare your client to make an opening – to
say something to the other side and open the possibility of understanding,
perhaps by a sincere apology. Ms. Sterne cautioned though that the act
of apology has to be handled delicately and appropriately; it must be
delivered honestly – or it could backfire.
Ms. Warren stated that she goes by the motto: “Mediate early
and mediate often” because the case may not settle in the first
session. It’s helpful to mediate early to get clear about your
case – but don’t harden your position – it’s
important to come with an open mind and see what ensues.
Judge Dodds commented that the insurance adjuster has to be there!
Mr. McIvers talked about managing expectations of the parties –
of the other side and your own client. He proposed that well prior to
the mediation (several weeks in advance) the attorneys should get some
sense of the opening proposals and get those to their respective clients
and/or adjusters so key decision makers have an opportunity to evaluate
the settlement proposals. Mr. McIvers also mentioned that it is important
for the attorneys to share their briefs (they have to convince the other
side of their evidence) and if something needs to be given confidentially
to the mediator, that can be done separately. Judge Dodds agreed that
getting your brief done early helps you to prepare for the conference.
Regarding what to include in your brief – make it information
packed, no posturing, just information. Ms. Warren appreciates key points
set forth in bullets for a quick summary. Mr. McIvers has been impressed
by a big notebook of documents and information – but because it
educates the other side rather than the mediator. Ms. Rubenstein has
seen effective briefs written as letters to the other side, which include
recognition of areas of agreement, as well as an understanding of areas
of disagreement.
Ms. Warren also observed that when appropriate, allow the client to
give the opening. That approach may be difficult for an attorney –
to sit back and let their client make the case (because they are paid
to represent the client), but she has seen the best openings from the
parties themselves. Ms. Sterne also reminded that it often helps when
the parties can dialogue directly. Mr. McIvers told a story about how
the attorneys were “real bears” in the mediation conference,
strongly arguing and posturing - and then their clients got together
at a break and figured out a number that “would get the job done.”
Throughout the meeting, some ethical issues were raised and deliberated
and examples of mediation techniques from the mediators’ perspectives
as well as the litigators’ perspectives were shared. The meeting
provided the environment for considering a new approach to case resolution
and the attendees were eager to continue their thoughts in a future
round-table discussion.
The next ADR section meeting will be held Thursday, November 14th.
