In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel. The presence of lawyers at the mediation was itself unusual according to some limited empirical research. Two studies in Arizona, two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party. Thirty-five to fifty-six percent of the mediations involved two pro se parties. [1]Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied. [2]Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party. Moreover, sixty-nine to seventy-two percent of cases filed in a Wisconsin urban area court involved at least one pro se party. If a court referred these parties to mediation, they likely did not retain counsel to represent them in the process. [3]
Lawyers as Spoilers?
Some mediators prefer that lawyers do not participate in mediation. They consider lawyers potential “spoilers” because the traditional adversarial role they play, and perhaps their mindset, may keep them from exploring creative solutions to the dispute. [4] Some mediators also believe lawyers take an adversarial point of view to information gathering and exchange. Accordingly, lawyers may view information as simply enhancing a client’s legal case and should, therefore, be used for winning. It should not be shared except at trial and certainly should not be shared to explore value creating trades or other settlement options. Other commentators contend that lawyers compromise the mediation process by jealously viewing it as an intrusion into their domain of competence. They also argue that lawyers cannot adapt “professionally to a situation of controlled and defused, rather than polarized and contentious, conflict.” [5]
Lawyers’ Views of Mediation
These lawyer attitudes found expression in some recent research. Beginning in 2000, Julie Macfarlane, a Canadian law professor, analyzed forty lawyers working in Toronto and Ottawa about their attitudes about a new rule requiring mandatory mediation of commercial cases. She developed five “ideal types” to characterize the comments of the lawyers. The “pragmatist” viewed mediation as an extension of the adaptive settlement role these trial lawyers played before courts required mediation. Mediation, they believed, offered an early opportunity to assess and prepare a case, to limit the rising costs of litigation, and to provide to business clients the rapid resolutions of disputes they sought. Yet, these lawyers still saw themselves as taking the lead in the mediation process.
“True believers,” another group indicating positive attitudes towards mediation, used quasi-religious metaphors to talk about how mediation had affected their orientation to practice strategies and conflict resolution. They felt “converted” or “transformed” in the ways they sought to meet clients needs and expectations and in identifying the changes they had experienced personally and professionally. They viewed mediation as a new form of adversarial process and recognized the distinct skill set it required. A true believer often ensured that his or her client played an important role in the mediation process. They were more likely to use non-lawyer mediators who could handle and appreciate the heightened emotions of the parties to the disputes.
The “instrumentalist” used mediation simply to advance the client’s unchanged adversarial goals. The instrumentalist either used the tool strategically to fish for information or to reduce the expectations of the opposing party. The lawyer played the dominant role in the process. He was more likely to use an evaluative mediator and was surprised if the process resulted in non-monetary or integrative, rather than distributive, solutions.
The “dismisser” regarded mediation as the latest fad, offering little over traditional unassisted lawyer-sponsored negotiation. He acknowledged that mandatory mediation required earlier preparation of the file, but viewed this development as an intrusion on his or her autonomy and control. The dismisser often viewed the utility of the mediation process as providing a “reality-check” for his unruly client or for opposing parties who, at least from his viewpoint, were poorly represented. The dismisser sought evaluative mediators with judge-like authority.
Finally, the “oppositionist” viewed mediation as a danger to the legal system, to the role of adversarial dispute resolution, and to his or her role as a winner-takes-all advocate. He or she viewed mediation as a response to government inefficiencies and court back-logs. He or she viewed mediators as unskilled and manipulative. Accordingly, mediation felt risky for him or her because of the perceived loss of control. [6]
Several factors seemed to affect these attitudes. Lawyers who had had more experience in mediation tended to view it more favorably. Also, when the leadership in the local legal community strongly supported mediation, lawyers in that community also tended to show more support for the process. In addition, attitudes of lawyers reflected the attitudes of the businesses or industries from which they drew their clients. Some of those clients were more litigious and some more settlement-oriented. [7]
Macfarland questioned whether we could expect to see over time more convergence in the attitudes of lawyers. With time, they would participate in more mediations and become more aware of the different skill set mediation requires that is distinct from the traditional positional bargaining skills they already have. At the time of the research, one lawyer explained: “I’m still at a loss as to what role I really play.” [8]
A recent study by the ABA Committee on Dispute Resolution examined what factors affect an attorney’s advice to clients to try ADR. At least sixty percent of the 2,330 attorneys surveyed had served as an advocate on behalf of a client in a case using ADR or they had served as a third-party neutral. The survey concluded that if an attorney had any experience with ADR, he or she was much more likely to recommend ADR to a client. The article concluded by recommending that more attorneys be encouraged to participate in ADR, with the message of the study seeming to be “try it, you’ll like it.” [9]
A study conducted in 2001 of Arizona lawyers, most of whom had tort or personal injury practices, showed that lawyers were less likely to discuss ADR options with their clients or opposing counsel if they were less familiar with the processes. Attorneys who expected mediation to produce earlier and satisfactory settlements also thought the benefits of ADR outweighed any costs associated with the processes. Less knowledgeable attorneys were less likely to believe that ADR would produce benefits for their clients. [10]
Taken together, the studies suggest that mediation conducted by skillful mediators sells itself. Over time, lawyers who have good experiences in mediation and feel competent in the new process will recommend its use to clients. The research may also suggest that as lawyers become more skillful in the process they may be less reliant on mediators offering evaluative or judge-like styles.
The Vanishing Trial
A recent study shows that nearly all federal cases settle before trial. In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases. These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts. By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings– but the dispositions by trial fell to 1.8 percent. [11] These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962. Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year. Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.” [12] In other words, most judges spent less than forty-two days presiding over trials. Each judge handled six “other contested matters,” but taken together, the traditional trials and the “other contested matters” averaged a day or less in length. In 1962, the average federal judge conducted 39 trials each year. [13]
State court statistics give a similar, but yet incomplete, picture. Based on data provided by the National Center for State Courts for 22 states, jury trials fell by 33 percent during the period of 1976 through 2002. Bench trials fell to 15.2 percent of total civil dispositions in 2002. [14] Scholars and commentators are not quite sure what to make of the data. Some suggest that increasing use of ADR, especially mediation, explains the drop in the number of trials. What the data says to me is that lawyers play a more significant role as agents of settlement than as litigation advocates. I explain to my students that they will far more likely use over their lifetimes the negotiation and mediation skills that I teach than they will likely use the rules of evidence or their appellate advocacy skills.
Lawyers’ Increasing Sophistication in Mediation
Lawyers are increasingly more skillful in representing clients in mediation. Many lawyers are now trained as mediators. [15]Law schools increasingly teach the skills required to represent clients in mediation. [16] A recently published book finally puts in one place much of the good advice on representing clients in the process. [17]Dwight Golann has also authored a new book called Resolving Disputes that he says reflects the perspective of lawyers representing clients in ADR processes. [18]Several law firm websites now have pages dedicated to preparing clients for mediation. [19]
Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques. [20] At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” [21]
Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.” [22] Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement. [23] Based on the research, these scholars ask us to “bring in the lawyers” to mediation. [24]
Borrowing Lawyers’ Power
I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues. In the last mediation I conducted, I intended to borrow their power. My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county. The case involved the sale of a private residence. The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia. The building inspection, however, came back with a comment about the aging roof and cracks in the foundation. It spooked her a bit. Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house. Now, she felt exploited. Without an agent she trusted to help her work through these emotional responses, she backed out of the deal. [25]
When I first moved to Virginia, I was shocked to find that lawyers participated in every, or nearly every, real estate closing. At first, I guessed that lawyers had maintained a strong lobby that had kept this part of the real estate business in their hands. This past summer, I learned from another country judge — who presides in a courthouse located about thirty-five miles from the Cumberland Gap — that titles to real estate located in Virginia are especially complicated. Some of them may go as far back as the first settlements in the New World. Jamestown, after all, is a popular tourist attraction that people visit after they tour the old Williamsburg colony, Monticello, and the Yorktown battlefield. A lawyer who had joined us for lunch exclaimed that some of his biggest malpractice worries related to the accuracy of his title opinions.
The revised Model Standards of Conduct for Mediators, [26] a set of aspirational ethical guidelines, provide that the mediator may only accept cases in which he or she has the competence needed to satisfy the reasonable expectations of the parties. [27] The mediator must discuss the situation with the parties and take appropriate actions, if he or she learns during the course of the mediation that the mediator cannot conduct the mediation competently. Based on the results of the discussions with the parties, the mediator may need to withdraw or seek appropriate assistance. Virginia’s mandatory Standards of Professional Conduct contain a similar provision. [28]
Thus, when I got the court-appointment to mediate this real estate case, I quickly called the lawyers for the four parties – the seller, the breaching buyer, the seller’s listing agent, and the buyer’s agent — to advise them that (1) I am not licensed to practice law in Virginia; (2) even though four states have licensed me to practice law, I am on inactive status in each; (3) I had never handled a real estate lawsuit while I was actively practicing law; (4) my code of professional ethics precluded me, as a mediator, from giving legal advice, [29] and (5) if I gave legal advice, I was likely engaging in the unauthorized practice of law. [30] Did they still want me?
As the day of the mediation approached, I had a few butterflies in my stomach. If one or more of the lawyers expected me to evaluate the legal strengths of the parties’ cases — something I would hesitate to do anyway and would only do after providing certain procedural safeguards — I was not going to meet their expectations. But I hoped that I could enlist the lawyers to provide their own candid analysis of their clients’ cases. They would provide the legal analysis and advice as I played quite consciously “dumb.”
Some of you may recall the character, Joseph Miller, played by Denzel Washington in the film Philadelphia. He plays the lawyer for another lawyer, Andy Beckett, whose firm has dismissed him from a high-paying, high-status job when his superiors suspect he has AIDS. Throughout the film, Miller says: “Explain this to me like I’m a six year old.” And so, throughout the mediation I asked the lawyers to explain relevant Virginia real estate law to me “like I was a six-year old.” Of course, I could guess at the law, but the real audience was the explaining lawyer’s client, the other lawyers’ clients, and the lawyers. I set up this interaction in a private meeting with the lawyers after each client had made an opening statement. I asked them to help me by explaining their legal theories without rancor, without escalating the conflict, and with some candor. I probed their presentations with general questions. I would then ask if a certain theory or piece of evidence created a “soft spot” in that client’s case. The lawyers felt secure enough, in joint session, to make concessions about the strengths of their cases or defenses, typically through a shoulder shrug or a slight nod “yes” or the body language signally “maybe.” Without this give and take among the lawyers, we would not have settled the case. In other words, the lawyers did the heavy lifting that day. I just suggested to them how to do the lifting and when I needed it done.
Using Pre-Mediation Questionnaires
Prior to the mediation, I circulated to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher, a well-known St. Louis mediator. It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending. It asks about the status of discovery and how much more discovery the parties need to do. It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial. Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far. It then asks for a candid assessment of the “soft spots” in the claims or defenses and whether the client has sufficient information to form a realistic assessment of the legal case or the settlement options. If not, the questionnaire asks the lawyer for what additional information the client needs. It also asks about settlement authority, who will be attending the mediation, and for any additional information the lawyer thinks may be helpful in settling the case. This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case.
Representing Clients in Mediation
When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions. [31] This article will focus on the first three phases of the process. A later column in this series will consider in more detail the role of lawyers in the mediation itself.
Counseling the Client about Mediation
In counseling a client about mediation, a lawyer may wish to cover the following topics:
Preparing the Client for Mediation
The lawyer may also wish to:
Preparing the Case for Mediation
The lawyer must also develop a strategic negotiation plan with the client. The lawyer will likely:
How lawyers prepare clients for mediation depends on their client representation skills, their experience with the process, their attitudes towards mediation, their expectations about the process, and the client’s expectations about the process. Over ten years ago, I represented a client in mediation for the first time. Instantly, I was a “true believer.” After that transformation in perspective and professional goals, I have spent the last decade assembling the skills I need to teach students about mediation, represent clients in the process, and serve as a skilled neutral. While mediation may no longer be the latest fad, lawyers still have plenty to learn about effectively using the process on behalf of our clients.
End Notes
1 See Connie J. A. Beck, at al., A Critical Reappraisal of Divorce Mediation Research and Policy, 6 PSYCH. PUB. POL’Y & L. 989, 993-994 (2000).
2 See Craig A. McEwen, Nancy A. Rogers, & Richard J. Maiman, Bring in the Lawyers: Challenging the Dominant Approaches Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1362 n. 261 (1995).
3 See Katherine R. Kruse, Biting Off What They Can Chew: Strategies for Involving Students in Problem-Solving Beyond Individual Client Representation, 8 CLINICAL L. REV. 405, n.19 (2002).
4 Craig H. McEwen, et al., supra note 3, at 1354 and sources cited therein.
5 Id. at 1355.
6 Julie Macfarland, Cultural Change? A Tale of Two Cities and Mandatory Court-Connected Mediation, 2002 J. Disp. Resol. 241, 354-59.
7 Id. at 315-19.
8 Id. at 299.
9 Roselle L. Wissler, Attorneys’ Use of ADR is Crucial to Their Willingness to Recommend it to Clients, 6 Disp. Resol. Mag. 36 (Winter 2000).
10 Roselle L. Wissler, Barriers to Attorneys’ Discussion and Use of ADR, 19 Ohio St. J. on Disp. Resol. 459, 472, 480-82 (2004).
11 See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts 8-19, http://www.abanet.org/litigation/vanishingtrial/home.html (Nov. 8, 2005).
12 See Patrick E. Higginbothan, Judge Robert A. Ainsworth, Jr. Memorial Lecture, Loyola University School of Law: So Why Do We Call Them Trial Courts?, 55 S.M.U. L. Rev. 1405, 1405-06 (2002).
13 Id. at 1406.
14 See Patricia L. Refo, The Vanishing Trial, 30-2 Litig. 2, 3 (Winter 2004); Hope V. Samborn, The Vanishing Trial: More and More Cases are Settled, Mediated or Arbitrated Without a Public Resolution. Will the Trend Harm the Justice System?, 88 ABA J. 24, 27 (Oct. 2002).
15 For instance, in Florida, over 17,000 people had completed certified mediation training programs. See http://www.flcourts.org/gen_public/adr/adrintro.shtml.
16 In 2000, the American Bar Association’s Directory of Law School Alternative Dispute Resolution Courses and Programs listed 830 courses at 182 ABA-approved law schools. The ABA reported that on average about 27 percent of students at these schools took at least one ADR-related course. Schools most often offered an ADR survey course (157 out of 182). Eighty-six schools offered a mediation class. Seventy-three schools offered an arbitration class and 116 schools offered a negotiation class.
17 See Harold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2004).
18 Dwight Golann, Resolving Disputes (Aspen. Publ. 2006).
19 See, e.g., Davis, Matthews and Quigley, P.C., Negotiation of Agreements and Mediation, http://www.dmqlaw.com/CM/Articles/Articles88.asp (Oct. 26, 2005). See also Frank V. Ariano, A Lawyers Guide to Preparing Clients for Family Law Mediation, http://www.isba.org/Member/nov02lj/p600.htm; Mediate.ca, The Lawyers Role in Mediation, http://www.mediate.ca/lawyersrole.htm (and articles cited there); Ministry of the Attorney General, General Information, Ontario Mandatory Mediation Preparation, http://attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp; Rita L. Gitchell, Preparing your Case for Mediation, http://www.nla.org/library/spring97/pg13.html.
20 Dwight Golann, How to Borrow the Mediator’s Power, 30 Litig. 41 (Spring 2004).
21 Nancy Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It? 79 WASH. U. L. Q. 787 (2001) (but this approach, she argues, fails to offer disputants a high level of procedural justice).
22 McEwen, et al., supra note 3, at 1360-61. McEwen interviewed 178 Maine lawyers involved in divorce mediation.
23 Id. at 1365.
24 Id. at 1375-95.
25 The Agreement to Mediate that I currently use allows me to “discuss this mediation as a teaching tool, but only if [I] keep[] the names of the parties confidential and talk[] about the facts of the dispute in a general manner so students will not be able to identify the parties from the disclosure of those facts.”
26 http://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal05.pdf (Aug. 9, 2005)
27 Id. at IV (A).
28 Jud. Council of Va., STANDARDS OF ETHICS AND PROFESSIONAL RESPONSIBILITY FOR CERTIFIED MEDIATORS (June 2002)(hereinafter Virginia SOEs), available at http://www.courts.sttae.va.us/soe/soe.htm (applying to all certified mediators) at § K.
29 The Virginia SOEs provide: “1. Mediation is based on the principle of self-determination by the parties. Self-determination requires that the mediator rely on the parties to reach a voluntary agreement. 2. The mediator may provide information about the process, raise issues, and help explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute. 3. The mediator may not coerce a party into an agreement, and shall not make decisions for any party to the mediation process . . . .” Virginia SOEs, supra note 29, at § E. See also VIRGINIA RULES OF PROFESSIONAL CONDUCT RULE 2.10(b)(2) and comment [3] (2004)(similar language). A Virginia Supreme Court rule, however, confuses the role of the mediator by providing: “(c) A lawyer-mediator may offer legal information if all parties are present or separately to the parties if they consent . . . . (d) A lawyer-mediator may offer evaluation of, for example, strengths and weaknesses of positions, assess the value and cost of alternatives to settlement or assess the barriers to settlement (collectively referred to as evaluation) only if such evaluation is incidental to the facilitative role and does not interfere with the lawyer-mediator’s impartiality or the self-determination of the parties.” Id. at RULES 2.10(c) and (d) (2004). Mediator misconduct sufficient to avoid a mediated agreement in Virginia includes “failure of the neutral to inform the parties in writing at the commencement of the mediation process that : (i) the neutral does not provide legal advice; (ii) any mediated agreement may affect legal rights of the parties; (iii) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and (iv) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.” VA. CODE ANN. § 8.01-576.12 (West Supp. 2005) & § 8.01-581.26 (West Supp. 2005). In Virginia, these required disclosures are known as the “four legals.”
30 Virginia is one of a very small number of states that offer guidance to mediators about the unauthorized practice of law. See Sup. Ct. Va., Guidelines on Mediation & the Unauthorized Practice of Law, http://www.courts.state.va.us/drs/upl/preface.html (Nov. 8, 2005).
31 Abramson, supra note 18, passim.
32 I recommend Program on Negotiation, Saving the Last Dance: Mediation Through Understanding, available at http://www.pon.harvard.edu/news/2001/stld_video.php3 (Nov. 8, 2005); Program on Negotiation, Mediators at Work: Breach of Warranty, available at http://www.pon.org/catalog (Nov. 8, 2005).
33 For more information see ABA, Div. of Prof’l Educ. and Sec. of Litig., What Every Litigator Needs to Know About Mediation (Videotape 1993), http://www.abanet.org/cle/catalog/clecatalog05-06.pdf (Nov. 8, 2005); Tom Arnold, 20 Common Errors in Mediation Advocacy, 13 Alternatives to the High Cost of Litig. 69 (CPR Inst. 1995); Lee Jay Berman, Lawyers Preparation for Mediation puts Money in Clients’ Pockets, http://www.mediationtools.com/articles/preparation.html; Bobby Marzine Harges, The ABC’s of Effective ADR: Ten Practical Tips for Representing Clients in Mediation, 43 La. B. J. 142, 143 (Aug. 1995); Jeff Kichaven, “Is That All?” Attorneys Need to Prepare their Clients for Mediated Settlements, http://library.findlaw.com/2000/Mar/1/129535.html (Oct. 26, 2005); L. Randolph Lowery, Preparing Your Client . . . For Mediation, 53-AUG Disp. Resol. J. 30, 33 (Aug. 1998); Jacqueline M. Nolan-Haley, Propter Honoris Respectum: Lawyers, Clients, and Mediation, 73 Notre Dame L. Rev. 1369, 1376 (May 1998); Stephen P. Younger, ADR and Beyond: Effective Representation of Corporate Clients in Mediation, 59 Alb. L. Rev. 951, 953-57 (1996).
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