Don’t blow up your chance of mediation by making these common mediation mistakes.
Attorneys get paid for good advice. Sometimes your clients take it, and sometimes they don’t.
But once in a while, attorneys could use some advice of their own. In my role as a mediator, I frequently observe smart attorneys floundering when it comes to advising their clients about mediation issues. When mediation isn’t the focus of your practice, it is understandable. Or if you are still new to the legal profession, you may not have ever been exposed to any education about best practices in mediation.
If you fall into either of these categories, or could use a refresher, we’ve put together a list of common mistakes AND ways to avoid them based on our many years of experience with mediation as the focus of our practice at Weber Dispute Resolution.
Misunderstanding your role as an advising attorney
The advising attorney’s job is to ensure the client can make informed decisions. But often, attorneys act like litigators when they were hired to be advisors. When you are advising, your job is simply to advise your client about the law, and what they can expect if the matter proceeds to court. This is not the time to sugar coat reality for the client. Honesty is the best policy.
Remember, the client has chosen to mediate to avoid adversarial litigation. Approaching the case as a zealous advocate misses the mark. You are not in charge. Your client is in charge. Ensure sure your client makes informed choices by making sure they understand any potential results of the decisions affecting the final settlement results. Using your legal knowledge to think through all possible scenarios is your true value to the client.
Filing motions during mediation
Every now and then with a mediation, a client may get spooked about something. Maybe it’s about spousal support or child custody. They go to an attorney to file a motion while already engaged in mediation. The knee jerk reaction to file a motion does untold damage to the mediator’s ability to manage and ultimately settle the case.
Introducing adversarial processes is destructive to mediation. Emergencies happen and I understand this. Rather than file motions at court, parties can schedule an emergency mediation session.
At Weber Dispute Resolution, you can often have an emergency addressed within 48 hours. Most of the time, we can resolve the problem WAY before a court can. In San Diego County, motions can take months to be heard. The court is continually restricting what it considers an emergency. Ex parte requests are denied more frequently. In mediation, we may be able to short circuit emergencies before you need to file a motion.
Sometimes counsel is worried about jurisdiction for retroactivity of support. As a result, an attorney is tempted to file a motion for child and/or spousal support. This is truly an unnecessary and costly exercise. Rather than file a motion, parties can agree by stipulation to reserve jurisdiction over retroactivity. Weber Dispute Resolution does this frequently in mediation. If you worry about needing to file a motion to prevent loss of retroactivity or some other jurisdictional issue, approach the mediator with a proposal to stipulate to retroactivity.
Proffering formal discovery
I get it. Old habits are hard to break. Sometimes an attorney barrels ahead and serves formal discovery during the mediation process. Again, this injects the adversarial element into a case and is an additional unnecessary cost. As part of mediation, all discovery can be informal. Mediation can’t continue if financial disclosure isn’t forthcoming.
Rather than serve subpoenas or other formal discovery, consider bringing up the discovery concern during mediation. A good mediator will work with the parties to ensure all necessary discovery happens and all parties receive the information they need. Parties can stipulate and agree to deadlines to provide information as well as a list of what is to be provided. In my experience, people are more likely to comply with informal discovery requests when they are part of voluntary non-adversarial processes. However, when adversarial formal discovery appears, cooperation greatly reduces.
Treating the mediator like a judge
Sometimes an inexperienced attorney will ‘argue’ the case in mediation in front of the mediator, as if the mediator would rule on a decision like a judge. A mediator doesn’t get a vote. The mediator’s job is to facilitate agreement, not to decide anything unilaterally. Arguing with the mediator like you do in court is counterproductive. Rather, coach your client on how to make interest-based proposals. Don’t try to convince your mediator regarding the merits of the case. Instead, work cooperatively with the mediator to identify viable proposals.
Showing up for mediation without any notice
Occasionally, I will have a mediation session where a party brings their attorney without notice, and it’s a surprise to everyone in the room. I don’t oppose attorneys participating in a mediation process. In fact, I encourage it. But showing up to a mediation session without notice can feel like an ambush to the other party. It can also throw off the neutrality of the process. Perhaps if the other party was notified, he or she might have wanted to have their own attorney attend.
If your client wants to you attend, talk to the mediator in advance so there are no surprises. You’ll waste your client’s money showing up as a surprise, causing the mediation session to be rescheduled because the other party doesn’t want to proceed. In my mediation process, attorneys are fine as long as both parties have counsel. Balance is key.
Assuming you need a retired judge as mediator
Mediators come in all shapes and sizes. Some are attorneys. Some are mental health professionals. Some are financial professionals. A few are retired judges.
It’s important to hire your mediator based on the skill set you need for your client. A retired judge is ideal when you need an evaluative mediation, where the judge will offer an opinion of how he or she would rule if the case were in court.
Some cases require a facilitator rather than an evaluator. A facilitator helps parties learn how to listen and hear each other, and to communicate their needs and interests more effectively. They really get into the world the clients are experiencing to find the clarity needed to uncover pathways to settlement. This requires specialized training many retired judges lack.
Spend time assessing the type mediation best suited to the clients and the case. Find a mediator who fits this need.
Using mediation too late in the legal process
Attorneys sometimes turn to mediation right before a trial starts, after years spent in litigation. This is a waste of time. An advantage of mediation is the potential to reduce your client’s fees. If you just want to churn fees, you can stop reading right now. But if you are the kind of attorney who cares about your client’s best interests, then you want to get your client into mediation sooner rather than later.
Use the mediator to manage the discovery process. Discovery is typically the most expensive portion of any case. Let the mediator help reach interim agreements rather than spending tens of thousands litigating interim motions. A good mediator can also do a lot to manage the case early in the process. This will reduce unnecessary fees. It reduces your client’s stress levels. And it reduces YOUR stress levels, too.
Second guessing hard-fought agreements
Sometimes I will spend hours, days, or sometimes weeks with a party in negotiations. We perform a delicate dance stitching together a balanced agreement based on the emotional, legal and financial needs of both parties. Then one person goes to their attorney, who was never in the room and has no idea of the context for the agreement. The attorney torpedos the agreement, undoing hours and hours of hard work. Inevitably, the case falls out of mediation, because the other party becomes angry the agreement is changing.
Be careful advising your client based on hearsay. Take time to understand the context of the agreement, how and why it was reached. It helps if the client involves you earlier in the process, rather than bringing an agreement to you after the fact without all the facts.
Avoid mediation mistakes! Call on Weber Dispute Resolution for advice
I welcome attorneys calling me to get context. With the parties’ permission, we can have a discussion and figure out where your case landed, and how it can be redirected down the right path. Contact us online today or call us at 858-410-0144.