by Laurie Israel, Esq.
Being a reviewing lawyer for a party in a mediation requires many skills. Surprisingly, only one of them is a knowledge of the law. This article summarizes my reflections on the skills involved in reviewing mediated agreements, and how there are many elements (some of them non-legal) that come together in best addressing a mediated agreement and monitoring the mediation process on behalf of a client.
1. Your Client is Your Partner.
Virtually all mediation clients have contributed much to the solving of their own problems. They are almost always in a better position to know all the facts and circumstances of their situation, and have always given much thought to it. Opening up to your client’s expertise in his or her own problem can be a very effective way for you to begin to be able to provide helpful input to a mediation agreement and a mediation process.
Your clients have a great deal of intelligence and good sense, no matter what walk of life they come from. All people are smart and have a great deal of inherent wisdom. Your clients seek your advice because of your special skills in problem-solving and your knowledge of the law. By partnering with your client, you can both do a better job, because there are two of you working on the problem.
2. Find the Way of Least Conflict.
What lawyers do most of the time (as do mediators) is resolve conflict. At the heart of the legal profession is conflict, and lawyers are trained conflict resolvers. A client that has come to you from mediation for you to review an agreement or provide input into the process has chosen alternative conflict resolution rather than a more confrontational way to resolve their problems.
Through anecdotal experience (some of it my own), I have come to the conclusion that most lawyers actually dislike conflict. A lawyer working with a mediation client can make his or her aversion to conflict into a strong power to assist in resolution. When dealing with the other reviewing attorney, if you have the right attitude, it is actually often possible to find a solution that can satisfy both sides. When you can satisfy both sides, then the solution to the problem or dispute is not a zero-sum game where if one party wins, the other party loses.
Always assume there is a solution that will be mutually agreeable – you just have to find it! Build bridges between the other reviewing attorney. Find out his/her concerns about aspects of the negotiated agreement or mediation process. Use your skills as a mediator (or collaborative lawyer) to disarm a counterpart counsel who has not been trained in mediation or collaborative law. Lawyers do well in dealing with mediation clients and other parties (including opposing counsel) when they find the most effortless and peaceful path to solutions of problems and disputes. Practicing law is like walking on water, sometimes.
3. Ask Open-Ended Questions.
When you are dealing with a mediation client, you will need to catch up and learn the facts of the client’s situation. Skillful interviewing is the key to finding out the facts that are crucial to helping your client solve the client’s problems. Try to understand what your clients mean ? this will not always be what they are actually saying. Read between the lines. Listen very carefully. Follow up on inferences. If you cut short lines of inquiry you can miss a vital piece of information.
At the end of an initial meeting with a client, I always ask the question, “Is there anything else that you have not yet told me that is relevant to your situation?” Generally, if you let 10 or 15 seconds go by, the client will think of something. And it may be a piece of information that is very crucial and valuable to helping the client. Do short-circuit a client by always asking directed questions. By eliciting your client’s answers, and not imposing yours or foreclosing your client’s by the way in which you question him or her, you will always find out important things and facts that that you would have missed. This is crucial to your being able to effectively and completely serve your client as the reviewing attorney in a mediation.
4. Give Good Advice About Compromising.
Often a mediation client asks to have a consult with you because of an impasse in the mediation process. Effective lawyering of clients in mediation depends on educating clients into reasonable positions and letting them know that compromising is sometimes (perhaps often) winning. Having said this, it is nonetheless very important to let your client tell his or her “story.” Bear witness to what your client is saying. Sometimes listening to what hurt your client is a very important part of the professional relationship and begins (or furthers) the healing process for your client.
By telling your client that his or her position is somewhat unreasonable will give the mediation client a reality test and the client can go back to the mediation better informed.
Mold your mediation client toward the idea of compromise (if compromise is possible and reasonable) early in the process (after they have had a chance to tell their story). Do it gradually by educating your client on the downside of taking an inflexible position. If you think your client is wrong about the possible results of a situation, tell your client, and explain why you think so. If you think there is some truth in what the other party (or the other party’s counsel) is saying, acknowledge that to your client. If you do this, you have moved the process forward by being truthful and (usually) you will have gained credibility with your client, and also with the other side.
5. Dig Your Heels in When You Have to – But Politely.
Always seek to maintain good relations with opposing reviewing counsel in a mediation, even on little things. By building trust, rapport, and cordiality with the other attorney, the process of solving problems and overcoming impasse will be easier and much more likely. It is true in law as in life that (as my mother wisely said), “You catch more bees with honey.” This is an absolute truth in the legal profession. It happens all the time. With this type of groundwork, when you need to dig your heels in for your client, do it respectfully, politely, and unemotionally. Because you have not “cried wolf” previously about unessential things, you will be listened to by the other side about important things, and you will be taken seriously.
6. Don’t Withhold Advice Just Because You’re Not Sure.
Sometimes the law is not clear, or the results of actions taken may not be clear, but give a client in mediation all the possible scenarios so that the client can evaluate a path he or she chooses to embark upon. Lawyers must give the clients the decision as to how to proceed. However, when asked, “What would you do if you were in my position?” be honest. Lawyers are trained to spin paranoiac fantasies to present to their clients. But don’t get carried away, otherwise nothing will happen and nothing will get resolved. Try to give your client some probabilities of any of these fantasies actually happening. This will allow your client to make his or her own evaluation of the risk and decision as to how to proceed.
7. Don’t Jump to Solutions.
Creative pondering is a good thing. Solutions come from many places, even in your sleep or in the car when you are commuting. The nice thing for your client about pondering during off-hours is that it is unbillable time. It is often the most creative time you spend on a client’s matter. Believe it or not, lawyers worry about their clients’ situations and want to make it better. That’s why we became lawyers.
Not jumping to solutions is a very important part of our job. If you jump to a conclusion too early, you may have foreclosed many better and more creative solutions that take a little more time or thinking to get to. Let time do its work.
8. Don’t Get Personal.
The relationship of attorney and client is very akin to the relationship between therapist and client. Perhaps that’s why we are called counselors. As in a psychotherapeutic relationship, it is almost always a mistake to bring details from your own life or life experiences directly into the discussion between you and your client. Your client has come to your office to deal with his or her own issues, not yours. Anytime you step away from your client’s issues and into your own life (even if you think your personal experiences are relevant to your client’s problem) you have broken the attorney/client counseling relationship. You can never fully recapture the trust of your client once you have done this. Keep focused on the client’s problems and don’t bring yourself into the room.
9. Make Sure Your Client Sees Your Value.
People generally don’t like to pay attorney’s fees. Often, one of the reasons the client is in mediation is to achieve the goal of saving legal fees. It is very important that your clients in mediation feel that they have received value for what they have paid you. Don’t send a bill until you have accomplished something of value. Own up to your mistakes and rectify them on your own time. Make sure that your clients’ money is being used wisely and in the most cost-efficient way. In your interactions and communications with your clients, detail the progress made so they understand what you are doing for them. Make sure the client is satisfied with his or her interaction with you.
10. Make an Independent Assessment of the Facts and the Law.
It is important to get a clear sense of the facts of your client’s situation. A good place to start is what your client tells you. It is also important to obtain facts independently, and also through opposing counsel, even though some of these facts may not be what you want to hear. The more fact-finding you do (even if some of the facts conflict), the more able you will be to work out a solution.
Ascertaining what the law is can be complex. Always go to the source (case, statute, or regulation) and make your own independent assessment. If you rely on secondary documents, you may be thrown off-track. Remember that two things are true: the law is a seamless web (i.e., everything is intuitively and logically based), and the law is sometimes counter-intuitive (you cannot always rely on logic to get to the result).
Copyright ©2007 Laurie Israel.