Effective Advocacy in Mediation

By Howard D. Venzie Jr., Esq.

Introduction

Any meaningful discussion of advocacy in mediation should begin with a recognition of the fundamental tension that exists between the two concepts. "Mediaton" on the one hand is a facilitated settlement process involving negotiation, conciliation and compromise between parties who have become adverse because of a controversy or dispute. "Advocacy," on the other hand, is premised on notions of "winning" the battle of persuasion between adversaries on important issues such as responsibility and entitlement and therefore appears to be the antithesis of resolution through compromise and settlement. This tension can, however, become a positive force in the evaluative phase of mediation if the parties and their counsel utilize effective advocacy techniques during the mediation process which focus key issues, engender constructive dialogue and bring realistic expectations to the bargaining table. Such advocacy, mixed with common sense and good judgment, is an effective tool for the mediator to utilize in the negotiation process and will certainly enhance the opportunity for settlement. Similarly, poorly prepared, ill-conceived or overly aggressive advocacy will be destructive to the mediation process and will diniinish the mediator’s opportunities for success.

The Role of Advocacy in Mediation

During the evaluative phase of mediation, which usually occurs prior to private caucus negotiations and includes pre-mediation submissions and joint session presentations, the parties and the mediator consider issues relating to entitlement, risk/cost factors and matters of monetary valuation pertaining to the "worth" of the case. During this evaluation process, the mediator uses his skills to assist the parties in the assessment of their respective positions, claims and demands and attempts to establish realistic dollar ranges of negotiation and reasonable settlement goals. Party advocacy plays an important role in setting the proper tone for constructive case evaluation and serves the purpose of educating the mediator on the merits and value of each party’s position or demands. Effective advocacy helps the parties to establish realistic expectations with respect to entitlement and monetary value which together define the parameters for meaningful negotiations that can lead to settlement.

Establishing Entitlement

Concepts such as responsibility, liability, duty and obligation are language of advocacy which parties use in joint sessions and other mediation processes to establish entitlement. Advocacy during the evaluation process should develop the legal and factual logic behind a party’s demands. Such advocacy should address the key "jugular" issues that drive the dispute and arm the mediator with a meaningful factual and legal analysis which he/she can use to "work" the entitlement issues with the parties in private caucus sessions. Artful and constructive advocacy on issues of entitlement also enables counsel for a party and the mediator to recommend or request compromise during the negotiation phase because the advocacy process has provided the parties with an opportunity to present their "best case" in a light most favorable to their respective positions.

Establishing Monetary Value

Mediation should be viewed as an opportunity for a party to "test" the reasonableness of its settlement expectations and goals. Effective advocacy during the evaluation process causes the parties to reconsider cost and risk factors and to adjust their expectations concerning the monetary value of their case before their claims are irrevocably committed to the litigation/adversarial process where the risk/reward analysis can change dramatically as the uncertainties of the litigation unfold. Such advocacy also enables the parties to more accurately identify legitimate items of cost and damages, eliminate speculation, establish levels of direct and indirect financial impact and to conduct comparative risk/reward analysis. As a result, the parties move through the mediation process toward more accurate case valuation and more realistic financial goals thereby creating more opportunity for settlement

Improving the Effectiveness of Advocacy in Mediation

Advocacy in mediation becomes "effective" when it improves the opportunity for settlement by raising the parties’ awareness of the benefits of settlement and the risk and cost consequences of impasse and failure. Experienced mediators will tell you that there are several common threads of skill and performance that run through successful advocacy in mediation. Set forth below are some of the important characteristics of successful mediation advocacy:

1. Be Prepared

The parties and counsel must treat the mediation process as serious business. Like so many other endeavors — you get out of it what you put into it. Serious preparation involves:

(a) defining the key "jugular" issues;

(b) developing the logic and arguments to support the merits of your positions;

(c) establishing a consensus on the "value" of a party’s case and on what the settlement goals should be;

(d) preparing a negotiation strategy to achieve settlement goals including the identification of trade-offs and areas of concession;

(e) establishing your needs in order of importance and anticipate other parties’ needs and interests;

(f) selection of the best methods of communication dying joint session presentations such as charts and other graphics, video tapes or direct presentations by a client or party representative;

(g) identification of the right party representatives to bring to mediation and why?

The importance of serious preparation should never become lost in the informal and sometimes casual nature of the mediation process. Poor preparation will most often lead to either a poor settlement or no settlement at all.

2. Be Credible

"Credibility" is the cornerstone of effective advocacy. If a party’s advocate loses credibility with the mediator or the other parties, the party’s case will lose value. Therefore, it is very important to the success of a party’s meditation effort that its advocate be believable, reliable and reasonably objective. Such "credibility" is established by presentation of comprehensive, unambiguous and well-reasoned positions, claims or defenses which are supported by record facts and documents. Credibility in mediation advocacy also means "conistency," which precludes advocacy that attempts to be "all things at all times on all issues." It is also advocacy which is even-handed and avoids speculation, particularly in the computation of damages and the presentation of monetary demands.

3. Be Persuasive

The goal of advocacy is to be persuasive. In mediation as in litigation, being brief and concise is the key to being persuasive. Effective advocacy in mediation is directed in part to the mediator for the purpose of making him/her your advocate. Therefore, being brief tends to be much more persuasive than overload.

Persuasive mediation passions generally include:

(a) simplified presentations which get attention and avoid distractions and diversions into less important side issues;

(b) the use of graphics to comunicate points;

(c) the use of technical experts to develop the parameters of the technical issues involved when they are important to the outcome (e.g., construction defect case and the scope and cost of repairs);

(d) written summaries of claims or demands with dollar values where appropriate;

(e) client participation to provide some positive emotional content.

4. Be Discreet

The tone and language of mediation advocacy is critical to its success. Advocacy, to be effective in mediation, must avoid confrontation, be professional and courteous and create a tone of compromise. Discretion and good judgment should be the dominant factors that determine the style and techniques of the advocate. The following "dos and don’ts" should help the mediation advocate to be more effective:

(a) don’t ridicule or demean your opponent or his/her case;

(b) don’t appear threatening - use language of persuasion;

(c) don’t file dispositive motions in pending litigation on the eve of mediation;

(d) don’t be condescending or overly contentious toward opposing Parties;

(e) recognize cultural differences and diversity;

(f) use the technique of apology with sincerity when appropriate;

(g) use humor and avoid "intemperate" behavior;

(h) avoid the "good guy" - "bad guy" dichotomy,

(i) speak in terms of issues, transactional responsibilities, risks and likely outcomes rather than blame or fault; and

(j) keep emotions under control.

5. Be Conciliatory

Settlement negotiations are inherently competitive in nature. As such - adversarial behavior tends to take over the dialogue if special efforts are not taken to maintain a cooperative atmosphere where problem solving, conciliation and resolution are the tone and emphasis of the mediation process. There are numerous techniques available to the advocate which he/she can draw upon to communicate the message that notwithstanding the differences between the parties, finding common ground and a solution to impasse is the primary force behind a party’s actions in the mediation process. These techniques include:

(a) avoid creating perceptions of rigidity and intransigence;

(b) talk to opposing parties in a conciliatory attitude which sends a message of compromise;

(c) set a tone of cooperative behavior by being cooperative;

(d) show compromise by being willing to concede on issues which are less important than others in order to gain momentum in the negotiation process;

(e) avoid taking extreme positions which unnecessarily restrict the other party’s ability to maneuver - always leave room for changes in position;

(f) look at the negotiation process as one of creating options;

(g) let the opposing parties know you’re listening.

Showing commitment to the mediation process and to the goal of settlement through conciliatory conduct goes a long way toward achieving a settlement. q

Howard D. Venzie Jr., Esq. is past chair of the Commercial Arbitration and Mediation Committee. He is with the Philadelphia firm of Venzie, Phillips & Warshawer.