Representing Clients in Mediations - Chapter II.3 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
Robert B. Davidson is a Mediator and Arbitrator, and the Executive Director of JAMS Arbitration Practice. He has arbitrated approximately 70 cases as sole arbitrator and as a member of tripartite panels in both institutional and ad hoc settings. Over the course of his career as Partner at Baker & McKenzie, Mr. Davidson acted as counsel for clients in approximately 100 arbitrations involving a variety of disputes, including serving as lead counsel in numerous domestic and international arbitrations, including 11 cases before the Iran-U.S. Claims Tribunal (more than any other lawyer) and cases before the U.N. Compensation Commission. He is past Chair, of the Committee on Arbitration of the New York City Bar Association; a Fellow and Board Member, College of Commercial Arbitrators and a Fellow, American Bar Foundation.
This chapter discusses the attorney’s preparation for a mediation and the actual conduct of the mediation, including the following: (1) advising the client about the mediation option, (2) negotiating an agreement to mediate with the other attorney, (3) preparing for the mediation sessions (preparing the case and the client), and (4) representing the client in the mediation sessions (pre-mediation conference, formal mediation sessions, and post sessions).
§ 3.01 Overview of Attorneys’ Roles in Mediation
Practitioner’s Hint: Attorneys should understand how the mediation process works, just as attorneys should understand how any forum works in which attorneys represent clients. In case the mediation does not settle everything, attorneys should be familiar with alternative options for resolving any remaining issues.
Attorneys perform various functions when representing clients in mediations. That representational work is different from what attorneys do when representing clients in settlement conferences, depositions, motions, arbitrations, or judicial trials. For each of those other forums, experienced attorneys know the routine. Many attorneys, however, are less familiar in representing clients in mediation.
Many attorneys, when they appear in mediations, rely on familiar advocacy skills, which, although appropriate for the judicial forum, are often not appropriate for mediations. As a result, many sophisticated and experienced litigators muddle through mediation sessions or engage in behavior that inhibits a resolution. They are learning on the job--out of necessity. Many attorneys went to law school before courses on dispute resolution were offered. The courses which law schools have begun teaching within the last fifteen years have been largely limited to teaching about the mediation process, not how to represent clients in mediations. Continuing legal education programs are only beginning to focus on teaching representational skills.
Given that the technique of mediation is fairly new many practicing lawyers find the mediation environment unfamiliar. Attorneys, however, should possess an understanding of three basic subjects.
First and foremost, attorneys should have knowledge of the theory and practice of negotiations, realizing that mediation is a similar, but not identical process. The very skills in preparing for and participating in a negotiation apply to preparing for and participating in a mediation. For instance, an attorney who practices interest-based negotiations should engage in the same interest-based analysis and strategies when representing a client in the mediation process.
§ 3.01 Overview of Attorneys’ Roles in Mediation
§ 3.02 Advising Client about the Mediation Option
 Professional Obligation
 Benefits of Mediation
 When a Dispute Is Ripe for Mediation
 When and How to Present the Mediation Option to the Client
[a] At the Time of Contracting
[b] At the Time of Retention
[c] At the Time That the Case Is Ripe for a Negotiated Resolution
[d] At the Time of Negotiating a Settlement
§ 3.03 Negotiating Agreement to Mediate with the Other Attorney
 Procuring the Agreement to Mediate
[a] Pre-mediation Agreements and Mechanisms
[b] Using Third Parties to Procure Agreement
[c] Techniques for Direct Persuasion
 Negotiating the Details of the Mediation Process
[a] Mediator Credentials
[b] Procedure for Selecting the Mediator
[c] Compensating the Mediator
[e] Standstill Agreement
[f] Location and Language
 Reaching Agreement on the Mediator
§ 3.04 Preparing for the Mediation Sessions: Preparing the Case
 Study ADR Provider, Mediator, and Mediation Rules
[a] Investigate the Mediator’s Credentials
[b] Determine the Nature of the Mediation Sessions
[c] Inquire about the Briefing Requirements
 Negotiation Plan and Its Impact on Representational Strategy
[a] Impact of Negotiation Approach on Representational Strategy
[i] Classical Positional Approach
[ii] Positional Approach Variation
[iii] Principled Approach
[b] Impact of Obstacles to Settlement on Representation Strategy
[i] Determine Why the Case Has Not Settled
[ii] Determine How to Overcome the Obstacles
[iii] Methodology for Overcoming Obstacles
[c] Impact of Cross-Cultural Differences on Representational Strategy
 Research the Legal Case
 Discovery and Motions
 Who Should Attend the Mediation Sessions?
[a] Should the Attorney Be Present?
[b] Should the Client Be Present?
[c] Who Should Attend on Behalf of an Institutional Client?
[d] Should Other People Be Present?
 Splitting Responsibilities between Attorney and Client
 Who Is the Audience in the Mediation?
 Preparing the Mediation Statement
 Begin to Prepare Opening Statements
[a] Importance of Opening Statements
[b] Tone and Content of Opening Statements
[c] Should the Client Present an Opening Statement?
[d] How to Divide the Opening Statement between Attorney and Client
[e] Should Client or Attorney Speak First?
 What to Bring to the Mediation
§ 3.05 Preparing for Mediation Sessions: Preparing the Client
 Explain the Mediation Process to the Client
 Explain the Different Role of the Attorney in Mediation
 Re-interview the Client: Real Interests and Monetary/Non-Monetary Solutions
[a] The Client’s Real Interests
[b] Non-Monetary Solutions
 Review Strengths and Weaknesses of Case (BATNA)
 Develop a Negotiation Plan
 Prepare Client to Answer Likely Questions
 Finalize Opening Statements
§ 3.06 Representing the Client in the Mediation Sessions: Pre-mediation Conference
§ 3.07 Representing the Client in the Mediation Sessions: The Formal Mediation Sessions
 Typical Questions for Attorney to Answer
[a] Mediator with Attorney/Client Caucus
[b] Attorney with Own Client Caucus
[c] Caucuses Just between Counsel or Between Clients
 Use of ADR to Break Impasses, Including the Mediator’s Proposal
 Drafting the Settlement Agreement
§ 3.08 Representing the Client in the Mediation Sessions: Post Sessions
 Successful Mediation Sessions
 Mediation Not Fully Successful