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Mediation advocacy: best practice in preparation and openings

by Matthew Rushton on 24 Feb 2017

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Plotting your moves and strategy prior to a mediation is critical: "Don’t plan so much that you’re trapped by it," warns one mediator, "but if you want to go from no settlement to settlement at a figure which is acceptable, without a plan of how to get there, you won't. If you don’t think it through everything will be a surprise."

One should, as far as possible, anticipate the other side's moves; have a clear idea of what points the other side are going to home in on, and plan a response.

"You have to think: what are we going to say when the mediator comes in and asks about issue A?" offers one mediator. If it's a money case, you need to plan how early you want to start talking about money. "It's something that the parties have considerable control over," says one mediator. "You have to pick your moment. Can you browbeat the other side? Will you get a better settlement by drawing the process out into the early hours? You need a plan, even if it's a wholly imperfect plan, which it will be," he says.

Planning is one thing, but being able to improvise is quite another. It is said that a truly great football manager is not the one who coasts to victory in a cup final - rather, it is the one who finds his team two goals down at halftime, abandons the tactics that have brought success and glory all season, and devises a new strategy to secure victory in the second half.

The same might be said of the great practitioners of mediation advocacy. One solicitor recalls a mediation where all their plans were frustrated by a single lawyer on the opposing side. Circumstances changed dramatically on day two, however, when the opposing lawyer announced that he was leaving to catch a plane at 4pm and wanted the matter resolved by then. It left an open goal: "We thought marvellous – we'll kill time until then and get it settled once you're out of the way. We didn't do much to advance the case; he grew furious and stormed off at 4pm expecting it to come to an end. We suggested to our clients that it might be an idea to see if we could resolve it over a drink in the pub. It worked and our clients recovered around half of the sum claimed."

Although the opposing lawyer had made a disastrous tactical mistake in making it known he had to leave at a certain time, the claimants showed initiative and flexibility in being able to adapt. "We altered all our plans for the mediation to concentrate solely on getting him out of the door and getting the parties to talk to each other. I don't think we ever would have resolved if he'd stayed."

Planning a lie

Mediation is fraught with ethical dilemmas: among them is how frank to be with the mediator and how to maintain that position over a period of time. While few solicitors would plan their strategy around deliberate deception, it is, says one mediator, "part of the game to lie".

The parties, therefore, have to decide, when challenged, whether to begin making concessions right away or simply re-state their position. The strength of your case, the opposition's approach to negotiation, and how much the parties feel able to trust the mediator will, in part, determine the approach. Mediators generally, however, caution against posturing tough as a negotiating tactic. "I think the lawyers who don't do very well in mediation, as judged by a mediator, are those that exaggerate, don't tell the truth, hide things, and don't respond to the other sides' points," says one mediator. In doing so, "they build the client's expectations, and all it achieves, with a skilled mediator, is make the process last longer".

The bottom line

One view of mediation is that both sides should tell the mediator their bottom line and, armed with that information, the mediator will work to construct a deal around those parameters. Few mediators, however, believe that acting in this manner will benefit the client, and consequently, they will not ask for a bottom line or best position. One mediator cautions: "My experience is that in truth, if you give your maximum position away, the chances are the deal will be more in the territory your opponents want if he doesn't do the same."

The opening 

Opening statements are a major opportunity to influence the other side, and highlight the differences in approach between mediation and litigation. From the outset, lawyers must be more than legal advisers. "Don't just read the position statement again – they've already got that," says one mediator. "Don't just talk about the law – consider the wider business context. Concentrate on looking them in the eye and using all of your team."

"It's not so much about what you say," says another. "It's what the other side hears." Mediators are sensitive to this, and will intervene if they detect lawyers are adopting a litigation-style approach: "I'm very firm now," says one. "I've stopped lawyers going on broadcast."

Addressing the mediator like a judge or magistrate is the downfall of many an advocate. A reappraisal is called for: "If the object is to persuade the other side to a position you find acceptable, how are you going to do that?" asks one mediator.

"Is telling them they are a scurrilous ratbag the best way of doing that? It may be how you feel, it may even be justified, but it's better to say no more than we disagree with you."

A more subtle, but no less rigorous approach is instead what mediators recommend. "I've seen several thousand opening speeches in mediations," says one, "and the most effective is to thank the other side for coming. Thank them for taking time to participate, and sound as though you mean it.

"Make it clear that you're prepared to compromise, to acknowledge that the result can't be entirely your way. You don't have to concede, you don't have to capitulate, you just have to indicate to the other side that you're there to make a deal."

Being conciliatory while fighting hard is where good mediation advocates excel. "It's talking quietly while carrying a big stick," says one mediator.

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Topics: ADR, Mediation

Matthew Rushton

Written by Matthew Rushton