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Editor's Note: Only a year old, the Alternative Dispute Resolution Section of the Utah State Bar has already made great progress in spreading information about mediation and arbitration both within the Bar and to the general public. With this issue of the Bar Journal, the Section initiates its "Mediator Focus," in which short articles by available mediators will appear from time to time.
As counsel for a party in mediation, your advocacy strategy is to motivate the opposing party to say "Yes" to a settlement option that works for your client. This means that your
advocacy in mediation is much like your advocacy in negotiation which differs significantly from your advocacy in litigation. Mediation is facilitated negotiation; it is a collaborative
problem-solving process. Mediation is not adjudication; it is not
an adversarial evidentiary process. In mediation, the opposing party - not the mediator - is the decision maker.
Prepare your client for mediation. Explain that mediation is facilitated negotiation and that the opposing party - not the mediator - is the person who must be persuaded by your advocacy.
The mediator's role is simply to help the parties reach a mutually acceptable agreement.
Identify your client's and anticipate your opponent's interests (including objective, subjective, and third-party interests), priorities, possible settlement options, legitimacy criteria,
deadlines, and alternatives to settlement. Determine your negotiating style, settlement authority, settlement range, starting position, and bargaining power. Determine who should make the
first offer in mediation. Agree with your client to make the first offer in order to avoid an early procedural impasse.
Prepare your opening presentation. Frame the dispute productively for negotiation; include appropriate empathetic remarks about the opposing party; and incorporate answers to anticipated
questions about your presentation. Decide whether your client should participate in the opening presentation (e.g., to "vent" emotion) or whether that would be
counterproductive. Your client also must be prepared to listen to the opponent's venting and risk analysis without getting too upset.
In making your opening presentation, demonstrate your commitment to joint problem solving. Attempt to build a relationship of trust and respect with your opponent. Identify issues that
should be addressed by the parties in reaching agreement. Disclose your client's interests and suggest some options that might satisfy the objective, subjective, and third-party interests
of both parties. Don't threaten to elect your unilateral alternatives to a negotiated agreement.
Listen carefully to your opponent's opening presentation without interruption. Control your client's behavior to ensure that it enhances joint problem solving. Ask questions about your
opponent's objective, subjective, and third-party interests. Avoid being inadvertently aggressive with your questions. Respond productively to venting by the opposing party. Use
reflective listening to reinforce positive feelings. Use reframing to redirect negative feelings. Be flexible and creative in brainstorming possible settlement options. Be prepared to
justify and evaluate possible settlement options using objective legitimacy criteria (such as precedents).
The Harvard Negotiation Project has identified seven elements of effective negotiations: the quality of the parties' relationship; the quality of their communication; their
interests that must be satisfied to reach agreement; their joint options for settlement; the objective legitimacy of those options; their unilateral alternatives
to settlement; and their authority for commitment to an agreement. During the mediation, you must keep productively focused on all seven elements.
You also must help move the process of mediation through its various stages by: handling emotion; sharing information; identifying issues and interests; inventing joint options; analyzing
options; breaking impasses; and documenting agreement. If your client or the opposing party says "No" and stops moving toward settlement, you must help the mediator do a risk
analysis of both your client's and the opposing party's alternatives to settlement. To help break an impasse, you may request the mediator's evaluation of the merits of the dispute and
the risks and expense of the parties' alternatives.
Remember that the goodwill, patience, and creativity which you and your client demonstrate help your opponent say "Yes" to what you need.
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