Representing a client in a Mediation / Negotiation setting requires a huge change in approach and attitude for a hardcore litigation / corporate lawyer. A ‘Resolutionary’ Lawyer who counsels in a Consensual Dispute Resolution setting requires a whole different skill set, in addition to what he / she possesses as a adversarial lawyer, and therefore, putting on a collaborative hat may seem easy on paper, but the real test is at the table, while facing the other party / counsel.
From limited experiences, learnings from mistakes, compliments from clients, advise from mentors and suggestions from peers, here is a guidebook with some cheat codes for any amateur lawyer looking to rehearse before a Mediation.
A – Authority
Your client, the opposing party, both, must have the authority to settle
Having a client who has the knowledge and authority to make decisions is crucial. If you represent someone at the table who has no authority, or the person with authority remains absent, and you have no power of attorney to represent and make decisions, it would surely suspend settlement proceedings and induce mistrust among parties.
B – Behaviour
Prepare yourself and your client to sit across the table with the ‘other’
Mediation has no scope for sections of the law, court judgements, precedents, and other litigation jargon. A confident pose at the table is crucial, but the language - both verbal and nonverbal, must resonate a genuine willingness to collaborate. Advise your client against arrogant and defamatory language. Being approachable and available is key to reaching common ground.
C – Caucus
Break into a private session, engage the mediator if negotiations are failing
Private meetings are great opportunity to persuade the mediator of your client’s BATNA and (sometimes even your WATNA) and ask the mediator’s assistance in moving the other party from his / her positions to interests. Be honest with the mediator about your client’s real interests and be prepared to reveal information you have held back in the joint conference.
D – Disagree!
If you think otherwise, disagree! A successful resolution depends on your advice
Mediation is not a space to decide ‘right’ versus ‘wrong’, rather acknowledge and respect the differences and work towards fixing the friction. But, if the other party is peddling erroneous facts or levelling false allegations and claims, then you must step in and contest the same. Disagree, set the facts right, get everyone on the same page and move on. Be decent in dissent.
E – Evidence
Use evidence to substantiate your point, eliminate false claims
The key is to use evidence to forward your interests and not to destroy the other’s interests. The approach is important - prove your point, don’t get adversarial. Documents or digital evidence can be used to clear doubts, clarify and confirm facts and misunderstandings. Some revelations may be confidential, these may be introduced during caucus.
F – Focus on the problem
It’s natural your client gets emotional, you need to steer the mediation
Focus on the problem rather than the emotions. Don’t let your client be distracted from his / her interests when mocked / instigated by the other party in an adversarial tone. Always remember why you are at the table and ignore taunts. If the mediation has turned into a sham, and the mediator has lost control, adjourn the session for the day.
G – Give in, don’t give up!
It’s alright to compromise a little, if it satisfies the bigger interests.
Don’t treat it as a step back to agree to some good faith offers and requests from the other party. If it’s letting you get out of an impasse and is moving the negotiation forward, it is certainly a step in the right direction. Evaluate and analyse offers sans emotions, match them to your core interests and take a calculated decision.
H – Humour
If your client can’t hold it together, you gotta lose it before she/he does
Your sense of humour will help you get out of tough situations. If you feel your client is giving in too much or speaking more than he should be, you can always barge in with a joke. Interject with some wit, navigate a break and immediately provide counsel in private.
I – Interests
There will be many, prioritise them.
Prioritising your interests will help you decide where you can go easy and where you need to be tough on what you want out of the mediation. Help your client discover his / her interests in the conflicting situation. Be smart about short-term needs and long-term goals.
J – Justification (Don’t)
No room for screaming excuses for your client’s behaviour
“We regret it, but…” is a terrible way to start. Even worse is blaming your client’s behaviour on someone or something, when what he/she did was unpardonable. An apology goes a long way in breaking down egos and anger. Encourage your client to be honest and accept that there he/she might have contributed to the conflict at some stage.
K – Keep the communication on
Even in chaos, make sure your client is still in dialogue
It is hard to reach common ground (forget resolving) if the parties don’t dialogue. Therefore, don’t cut people off when they speak, avoid interruptions and never fend off an idea – no matter how ridiculous it sounds. Try and bridge the communication gap – seek clarifications, confirm details, clear doubts, address misunderstandings, make changes in communication patters.
L – Legal Issues
Identify and analyse the legal issues in your client’s case
Knowing your client’s legal premises is only the beginning. Understanding the position and anticipating their alternatives out of a mediation setting is the next step. There may be some issues in the AGENDA that cannot be mediated; you may propose to arbitrate those issues. Through delicate questioning and objective reasoning, you can even counsel the other client, if you think he/she is being misguided.
M – Man marking
As much as possible, direct your conversations to the other party’s counsel
Address only those matters which deal with business, liabilities and legalities, don’t get involved in the personal matters. Directly taking on the other client will make the other client defensive and his/ her counsel very aggressive. Leave the emotions to your client, focus on the problem.
N – No Adversarial Jargon
Your verbose must be strictly collaborative without taking away the edge
This doesn’t been you become 100% accommodating and compromising, let your competitive personality stay with you, but avoid adversarial language like – precedents, witness, arguments, issues, objection honourable mediator, opposition party, responding party, defendants, etc.
O – Orientation
Acquaint your client with your role, the process and possible outcomes
It is important to make your client understand that you not his/her litigating lawyer in a mediation session, but a ‘Resolutionary’ one, and so, your role is different. Explain the process and the principles of voluntary participating, confidential conversation and neutral facilitation. This, of course, is something you would do much before you get to the table.
P - Privacy
Explain confidentiality, extra layer of security during Caucus
It will create an atmosphere of trust and allow your client to be more open with her/his intentions and interests and more inclusive with his option generation. He/She must be reminded that anything said or heard cannot be presented in court and cannot be used as evidence before a judge.
Q - Questions
Question must facilitate dialogue, not curb it
There is no scope for interrogation or cross-examinations, but you may ask innumerable questions. Once again, make sure you direct them to the other counsel and not the client, unless necessary. Close-ended questions make people defensive and nervous, producing dishonest and cautious responses. Open-ended questions allow honesty and frankness.
R – Research
Spend time researching, before brainstorming solutions
You must be careful with the options you generate – check market practices, industry ethics, current business trends, alternatives available, before deciding to make an offer. You must help your client look at his / her strengths and weaknesses and the other party’s too. Check on the different laws applicable before suggesting an offer. You cannot be making illegal / legally outdated deals.
S - Sign
Before you seal it, check for air bubbles
Be prepared to sign a settlement agreement. Stalling can lead the other party to lose trust or change his/her mind. Check for timelines, deadlines, liabilities, assurances, capability of commitments, and every small detail before signing. (If it’s a private facilitation session, make sure you begin the session as a conciliation and end it by signing a conciliation settlement, which will be treated as an arbitration award or a court decree, in India).
T – Tough on problem, soft on people
Respect emotions, but don’t lose focus of the job
Cut the person some slack on the emotional and psychological aspects of the case, but don’t compromise on your priorities and needs that you bring to the table. Encourage your client to listen emphatically, acknowledge and reflect good vibes. Summarise and rephrase negative language.
U – Use tact when at Impasse
Sensitivity and skill go hand-in-hand at Mediation
Change perspectives, take a break, move to another issue on the AGENDA, call for a cross-caucus, explain consequences of mediation failing, highlight positives, encourage client to express change in approach, reframe negativity, rework reservation points, prioritise relationship over resolution and if needed, reschedule session
V – Vetted Agreements
Make sure you have it examined by the best in the business
If there are technical pointers in the clauses of the contract, it is very important that a lawyer gets these scrutinised by experts from that field. Do not rush into agreements. If needed, you may ask the mediator and the opposing lawyer, that the expert be present at the mediation session in regard to discussing the particular technical issue.
W – Win-win approach
Move away from the “win at all costs” attitude
Everything you and your client does has to convince the other party and his/her counsel that you two are being collaborative and working in good faith to resolve. The options you generate must be mutually satisfying, therefore adding value and enhancing the appeal of a proposed solution is key to getting the other party to participate in problem-solving. Don’t be afraid to ideate and think out-of-the-box.
X – X-Factor
It’s time to show-off the learnings of law school
You have something your client doesn’t – the understanding of the law. Go well prepared and whenever the opportunity arises, take a break and explain the legal aspects of whatever your client is proposing or accepting or rejecting. Be ready with advice and suggestions and counsel your client in private, which will convince him/her you are working as a team.
Y – Your Role
Mediation is a self-determined process, neutral party cannot force settlement
Let you client take the decisions, this way her or she will feel empowered and find the process more inclusive. If it’s resolved – you benefit on time and costs, just like your client. You have your moments to shine – in the beginning (your opening statement), when you have to provide the law and facts regarding your client’s position. Keep it brief, persuasive and focused. This is good time to politely let the other party know “the case will be lose-lose in court” and “mediation is best for both”.
Z – Zsilence (The z is silent)
Silence is powerful – it keeps the other party grounded.
Anything that is unknown and unreadable makes someone engaging in it uncomfortable. Remember, you are the sidekick in this battle. Let your client take the lead, and you anchor this teamwork. Especially when things get heated up, try and use lesser words. Budget your words when it gets argumentative. The more you listen, the more information you draw. LISTEN - it makes you stand out from being an adversarial lawyer who only speaks!