Wednesday, October 23, 2013

Mediation advocacy

Organizations offering basic mediation training courses are probably turning out more graduates than can reasonably expect to earn a living as mediators. But those courses are beneficial in other ways than simply conveying the skills necessary to serve as a mediator, whether paid or volunteer. They are also helping advocates understand how the mediation process works, which should help those advocates better represent clients in mediation. I have heard a number of litigators say they were glad they took a mediation training course because it helped them learn how to negotiate better, and to better appreciate how mediation works. Since a lot more cases end up getting resolved by mediation than trial, no litigator can deny the importance of learning how to effectively represent clients in mediation and other forms of negotiated resolutions.

But if one of the purposes of mediation training is to help advocates better represent clients in negotiated resolution of their cases, why not just introduce more courses dedicated specifically to that purpose? There are lots of programs teaching trial advocacy and appellate advocacy and even discovery advocacy. Why not programs teaching advocates how to make the best use of the process that is increasingly taking over the resolution of litigated disputes?  SCMA is helping to fill that void by introducing an advocacy track at this year's fall conference (November 2 at Pepperdine University Law School). The program is being led by Hal Abramson, who wrote a textbook on representation in mediation, and Jeff Kichaven, an experienced mediator here in Southern California.

If trial lawyers think that all they need to do to prepare for mediation is cut a few paragraphs out of their summary judgment brief, and change the caption to “mediation brief;” if they believe that when they  arrive at the mediation, they should just practice their closing argument on the mediator, block their client from participating, and refuse to make any concessions to the other side; they are probably not getting the full benefits of the process. To make mediations most effective, litigators might need to think about doing the opposite of what they are accustomed to doing. That might include listening to what the other side has to say, acknowledging weaknesses in their own positions; sharing information freely and voluntarily; and cooperating with the other side to craft a solution to the conflict. None of these skills come naturally to trial attorneys!

The SCMA program intends to demonstrate to advocates how the pieces of the mediation fit together in a way that will make pre-mediation exchanges of information, opening sessions and caucuses more constructive.  The panelists will also address preparation for mediation, and closing the gap in the last stages of negotiations.The goal of mediation is not simply to settle the case, but also to strengthen the attorney-client relationship, to the benefit of both attorney and client. That's what mediators call a win-win outcome. Advocates, come on up to Malibu November 2 to learn how to achieve those goals.

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