Clients are Always #1 – But How We Help Them May Change in a Mediation

In the past few months, I have had the opportunity to co-teach a course on ethics for the 27th Northwest Dispute Resolution Conference and to speak about cross-cultural challenges in mediation to a dispute resolution class at the University of Washington School of Law.  Every time I talk about mediation to others, I find myself once again reflecting on the importance of centering one’s approach to a mediation around the clients. Having spent a career focused on my clients’ interests, this is a constant of a lawyer’s and mediator’s work -- that each client’s interests are unique and that the disputants’ interests in a mediation should be front and center for both the mediator and any counsel who participate. In one sense, that may seem obvious, but it can be easy to say and more challenging to put into action, especially in different contexts.

Mediators are often selected by legal counsel, so its easy to think of counsel as their client in some sense.  It is therefore understandable that they want to leave a good impression in their dealings with legal counsel, building rapport and demonstrating their experience, efficiency and efficacy. Mediators, as well as lawyers, however, must remain focused on the interests of the parties before them and be willing to explore areas of common ground with equanimity and curiosity, and without concern for how that may come across to either counsel. 

When attorneys are representing their clients in a mediation, they face the challenging reality that they have at least two audiences: their own client, who is observing what the attorney says and does on their behalf and the mediator, who the attorneys are seeking to inform about their respective client’s position on the matter at hand. For litigators, especially, that advocacy can often lead to a “win/lose” mindset – with the attorney having a hard time including a compromise or a “win/win” for both parties as possible alternate “good outcomes.” The mediation environment, however, is not the same as a trial and mediators are not judges.  It is therefore helpful for both the attorney and client to shift their attitudes towards a more settlement-oriented mindset.

More than once, especially when the attorney wants to impress a client, I’ve noticed a tendency for the attorney to state a client’s position in the most favorable light to the client, just as the attorney might in litigation. Although it’s understandable that the attorney wants the mediator to look favorably on the validity of their client’s position, that one-sided statement doesn’t help the client or the attorney keep open to the other party’s perspective or the possibility of a compromise that truly could be in the client’s best interests. Moreover, it makes it harder, or at least requires more time, for the mediator to assess whether there is common ground between the parties that might be the basis of a possible settlement.  As a mediator, I can best see where compromise or settlement may be possible once I fully understand both parties’ interests and concerns, and have an honest assessment of any potential problems with their case.

In preparing for a mediation, attorneys and their clients could therefore benefit from considering how they might shift mindsets. One strategy might be for an attorney to discuss with a client the differences between how one presents one’s position in a mediation versus at trial. A second strategy might be to have the client try to describe the opposing party’s position and goals, and what elements the client considers to be essential to any settlement they and the other party might accept. Through this process, legal counsel can help prepare their clients for a much more measured presentation of their position in the mediation and help their clients recognize the opportunities that mediation offers: to settle a dispute on mutually acceptable terms, without the risk and cost in time and resources that a trial necessarily requires.