An English Perspective on Mediation Advocacy

The UK website The Lawyer recently published an interesting commentary on mediation advocacy. Written by English barrister/mediator Beverly-Ann Rogers, it discusses the differences between litigation advocacy and mediation advocacy. Ms. Rogers writes,

In mediation the barrister often needs to take off his metaphorical wig and bring some softer skills to bear, empathising with the client’s anger, frustration and desire for revenge, encouraging him to release expectations and mentoring him to move on beyond the dispute. In short, the mediation representative wears many hats: counselor, wise sounding board, silent supporter, protector, negotiator and commercial problem solver as well as legal adviser and advocate.

Worth the read.

Is a “Mediator’s Check List” Really Helpful?

Mediate.com has an article written by California mediator David Laufer entitled, “How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues” Mr. Laufer’s article discusses how to prepare a “Mediator’s Check List (MCL) of Key Legal and Factual Issues.” He argues that the MCL will “help the Mediator identify and gain a better understanding of the important issues to discuss.”

Quite interestingly, I had a discussion yesterday with an attorney colleague about this very subject. He asked me whether I felt that preparing and presenting a brief to the mediator would be of benefit and whether I felt that it would shorten the mediation process. I told him that my experience with the mediation brief was mixed. There appears to be a tension between the mediator obtaining as much information as possible, and encouraging an exchange of information during mediation.

Regardless of the information provided by the parties before a mediation, every good mediator I have observed allows the parties to spell out their case and make their arguments themselves. The first hour or two of every mediation I’ve participated in has typically consisted of a recapitulation of the facts and legal issues involved. The parties want the opportunity to relate their stories to the mediator, to have their proverbial “day in court.” This is a necessary and vital part of the mediation process, for both personal injury plaintiffs and defendants and business persons alike. After having vented their frustrations, something they have heretofore only done to family, colleagues, and counsel, the parties begin to start thinking seriously and rationally about their case. There is something therapeutic about telling a story to a neutral third party who listens intently, takes notes and asks pointed questions, even if that neutral party doesn’t ultimately make any decisions.

One must wonder whether having a comprehensive check list of the scope and detail of the one Mr. Laufer suggests might limit that exchange. Will the parties, after having prepared a 42 item “checklist” (which likely took the attorney several hours) wish to spend more time at the mediation table reiterating the checklist? Will the mediator be tempted to tell a party who begins from the beginning, “I already read that in your brief/checklist/summary. Let’s move on to something else.”

I fully understand that the mediator needs to be prepared in advance. He should know the basic factual and legal posture of the cases. I ask for background information on the case. Typically, its the complaint and answer, interrogatory responses and if they’re far enough along, the summary judgment brief. But as a practical matter, I simply cannot envision an attorney spending the billable hours required to answer all 42 questions posed on Mr. Laufer’s checklist with enough detail for it to be useful. While mediation is used frequently and quite successfully here in Georgia, I cannot think of one instance in which a party has prepared a statement/checklist of such detail, especially in cases involving less than $250,000 in damages, where mediation is viewed as a cost effective alternative. I would be interested in hearing from Mr. Laufer about his response rate and the types of cases he handles.