Originally from Dispute Resolution Journal

Mediation is a powerful tool that is deeply integrated into the civil justice system. It is a rare case that does not have at least one brush with mediation during its life cycle. Whether that encounter is court-ordered, court-annexed, or voluntary, sooner or later, most cases will find their way to the mediation table. This means that all lawyers engaged in civil practice need to be fully prepared to represent their clients in this alternative forum. Unfortunately, our adversary system has produced many attorneys who are ill equipped for the mediation arena. Because of their lack of preparedness, or antipathy to anything other than litigation, some lawyers actually impede the settlement process. As attorneys better understand mediation, they can appreciate what it has to offer and learn to maximize its use. This will result in more settlements that are crafted to satisfy more of the parties’ interests.

While much has been written about mediation, little attention has been given to how an attorney should adapt his or her skills to work in this environment. Most attorneys are well trained in combative adversarial techniques that are fine for the courtroom, but they lack the skills to excel in the mediation session. At our court we have tried to educate and assist counsel in this process. When a case on appeal has been selected and scheduled for mediation, we send a mediation notice to all counsel for the parties, advising them of this fact. A seven-page document accompanies this notice, called “Mediation and Guidelines for Effective Mediation Representation.” The Guidelines give counsel an excellent snapshot of mediation and provide helpful suggestions to make the process productive. The two most crucial elements addressed in the Guidelines are the “confidential mediation statement” and the attorney’s role as an advocate in the mediation conference.