Litigation solicitors and barristers, how can you be a good mediation advocate? Some might say that you’ve either got it or you haven’t – but I believe that mediation advocacy skills can be developed and honed.
Go beyond the legal position
Going into a mediation with a client is about seeing the negotiation from more than just the legal position. I liken it to putting on a pair of 3D glasses because you’re no longer looking at things two dimensionally. Of course, a solicitor or barrister is there to give advice on the legal rights and the strength of the legal position. But during a mediation their client will be mulling over a number of other factors, such as the company’s reputational issues and its appetite for risk, as well as personal considerations – how would they otherwise like to spend their time, or how soon they’d like to sell their business or retire for example.
Part of the mediation advocate’s role is to encourage their client to think about all these elements. Daniel Kahneman, author of Thinking Fast and Thinking Slow, says the best decisions are usually made quickly – and those decisions are frequently made intuitively when someone has all the pieces of the jigsaw puzzle in place. A mediation advocate needs to learn to step back and say ‘Look, I’ve given you the legal advice, now it’s for you to make up your mind.’
Start as you mean to go on
The joint open session is the perfect opportunity to set the right tone for reaching a settlement. Here again, a mediation advocate should be mindful about not being too forthright on the legal issues and the strength of their client’s position in law. Instead of addressing these issues in detail, the advocate can use their five minutes to make a persuasive opening speech on how they wish to progress with the mediation and the areas to explore.
The simple statement made across a table or in a Zoom video call: ‘We know this has been a long-running dispute, but my client is here today with a view to settle and in good faith hopes that can be achieved’ is a powerful one.
Keep the negotiations on track
It’s very easy for people to lose track of time during mediation. As a mediation advocate, you can take note of when an offer has been made, how long it has taken for the other side to come back to you and what the response was. It’s not about speeding things up but keeping an overview of the negotiation process.
Tracking things in this way may show how a pattern of concessions is developing or might give insight on how to manage your client’s expectations in relation to a deal. Equally, it may highlight a need to change tack when one way just doesn’t seem to be working. Sometimes a party can get very focused on one particular direction and an advocate can use lateral thinking to ‘expand the pie’ working alongside the mediator and help the party see that there are other options.
Crunch the numbers
When it comes to risk assessment and fallback positions, a mediation advocate armed with a calculator is a wonderful thing.
It is helpful to talk through with the client in front of the mediator their fall-back positions if the case doesn’t settle. So, a reasonable assessment of probability of success in court on the claim and the counterclaim as well as the costs risks. As a mediation advocate, a useful tip is following that discussion to have the three key figures – the bottom line of the best, worst and most likely outcomes – written on a Post-It note in front of your client so they can quickly compare numbers as offers come in.
One barrister I know, also a trained accountant, brought a an Excel spreadsheet along to a mediation for a shareholders’ dispute that involved the valuation of shares. Every time the offer changed, the barrister was able to run the figures through the spreadsheet to get an adjusted share value and could say to the client ‘Right, this is what your risk profile now looks like.’
Be ready for the finishing line
A day of mediation can be tiring so you’ll need something in reserve for drafting the all-important settlement agreement. You can avoid ‘blank paper drafting’ by bringing along templates, such as a Tomlin Order and draft Schedule, that are already topped and tailed with the case details. And if there are certain things you think might happen – that it’s going to be necessary to have an escrow account, for example – you could pre-prepare the relevant wording or clauses.
That’s not to say you should put in work that may not be needed (and in the process front-load the costs for your client). It’s more a case of thinking about the settlement draft as the day progresses and using any available ‘down time’ when the mediator is in the other room to start putting the necessary wording together.
Have a joke to hand
I’m not being flippant. Both you and your client will welcome occasional breaks from the intensity of the day. I sometimes say to people when I come back into their room ‘I do hope your lawyer has been entertaining you’ or ‘I do hope you’ve discovered something funny about each other.’ A stash of chocolate biscuits is good for keeping up energy levels. And one lawyer I know always suggests to their client taking a short walk together in the middle of the mediation – good for stretching the legs as well as sparking fresh thinking. Just so long as they let me know and come back on time, I’m all for it!