On February 18, 2021, the ADR Section and YLS came together for a joint webinar concerning effective advocacy at mediation. As many know, mediation may be the closest a client gets to “having their day in court.” For various types of cases, the end result is often in some form of a negotiated settlement, as only a small percentage of cases actually go to trial.
For this specific webinar, mediation was the highlighted form of alternative dispute resolution (ADR). The panel featured Sheldon (“Shel”) J. Stark, Scott Brinkmeyer, and Nakisha Chaney. All three speakers are truly “giants” in the Michigan field of ADR and brought a wealth of experience.
The interactive discussion tackled different topics such as mediator selection, preparing clients for mediation, overcoming hurdles to settlement, effective written mediation practices, and developing an overall negotiation strategy. As the presentation was interactive in nature, questions were answered throughout the discussion as well at the end. Thus, it created an ongoing dialogue between the audience and the panel. While virtual, one almost had the feeling as if gathered in one physical place, as there was a strong spirit of collegiality.
In addition to the content presented, both Scott and Shel shared written resources with the attendees. For the purposes of today’s edition, Shel’s information is being featured with Scott’s advice to follow next week.
Specifically, Shell identified thirteen areas attorneys should focus on preparing for mediation as well as steps to take during the mediation session as outlined in his article, Making an Effective Presentation at Mediation: A Guide to Crafting and Presenting Your Preliminary Remarks.
First, he indicates preparation is key as “experience teaches that the more you prepare, the better your presentation will be.” He then goes on to indicate how preparation sets the stage for the various steps in a mediation by being sincere and true to oneself, while also knowing the audience at mediation by directing remarks to the decision maker (i.e. the other party).
From a logistical standpoint, Shel advised that opening remarks should be concise, he encouraged notetaking throughout the session, and suggests putting together an agenda for the mediation. From a humanistic standpoint, he advised against speaking strictly from notes. Rather, he encourages eye contact and using a first-person narrative.
Substantively, Shel advised attorney advocates to recognize that there will be conflicting viewpoints between the oppositional parties. Therefore, honesty and credibility are crucial elements at the mediation table. As advocates, recognition of your case’s weaknesses as well as crafting a plausible story for your client is important. Furthermore, the role of the attorney, is important. Unlike the more traditional “zealous” approach to advocacy one often sees in court, an attorney that is advocating in mediation comes to the bargaining table as a “joint-problem solver” – seeking to understand where the other side is coming from. While the advocate still represents their client’s interests, they should also be prepared to make reasonable concessions and act diplomatically.
Shel’s final two points are golden nuggets of straightforward, yet often forgotten, common sense. He encourages the attorney advocate to listen to both their client, the other side, and understanding the various aspects of the case. Moreover, he encourages us to make use of what is learned. As he puts it, “[t]he more you know and understand the better able you will be to decide” … and “whether to manage your risks and reach an agreement with which all sides can live.”
As one may gather, there are many considerations when acting in the role as an advocate in mediation. Stay tuned for next week’s follow up by flipping the script as Scott explains what NOT to do at mediation!
Michigan State University College of Law