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What every lawyer should know about mediation

When grown-ups tell an especially precocious child that he or she “ought to be a lawyer when you grow up,” it is not always meant as a compliment. Often the suggestion is really a euphemistic complaint that the child is being unreasonably argumentative and combative—though some of the children in question have been known to take this career advice at face value.

Lawyers themselves often see their work in the same light, where their job is to fight to the end of the earth for their client. But mediated settlement conferences—a mandatory precursor to superior court civil actions in North Carolina for more than 20 years—require attorneys to flex a very different set of mental and legal muscles and search for ways to resolve a dispute in a mutually satisfactory fashion.

For many attorneys, shifting gears from combat to collaboration requires some effort, but the mediators who have helped attorneys amicably resolve some of their thorniest disputes have, along the way, acquired some wisdom that any litigator could put to good use.

Get to work early

One of the main objectives of mediation is to save everyone involved time and money (and aggravation). Leslie Ratliff, executive director of the state’s Dispute Resolution Commission, noted that settlement rates hardly budged after mediated settlement conferences became mandatory, but the average length of time it took to reach a settlement came down by several months—fewer cases were being settled on the steps of the courthouse, as once was more common.

An impending trial can still be a powerful motivation to settle a case, but the longer a dispute festers, the more likely the parties are to dig in and become emotionally invested in their positions. Jon Buchan, a mediator and attorney with Essex Richards in Charlotte, says that by the time he sees the litigants at a conference, they often “have smoke coming out of their ears.”

“They have spent months or maybe years in the tooth-pulling agony of written discovery and depositions, paid their lawyers handsomely and still can’t resolve their fight,” he said.

Buchan said that at the outset, he works hard to be sure each side understands the weaknesses in its own case and the strengths of the other side’s case and persuade them to put their anger and adversary positions aside for a few hours, trying to get the clients to focus on the benefits of resolution over the headaches of continued litigation.

“If, after a couple of hours, I can get them to stop ‘trying their case’ to each other and to focus on a resolution that will get them out of the litigation business and back to their real business, I can often get them to ‘yes,’” Buchan said.

Try to be likeable

Jackie Clare, a mediator in Raleigh, said that personality, and an ability to see the case from the other side’s point of view, goes a long way in mediation. In several cases she’s mediated, the willingness to simply offer a formal apology has helped cases settle for an amount of money that she did not anticipate would settle the case. But above all, it helps to maintain a cordial demeanor in mediation.

“Studies were done on what gets people to change their behavior, but the number one thing is likeability. I see that over and over,” Clare said. “The attorneys who do the best job are the ones that come in, and they’re not using scorched earth tactics in mediation. Those behaviors keep the conversation going even if it looks like it’s coming to an end. Those are behaviors that get us to a place where we have the best chance to settle it.”

Get your clients involved

Jim Shannonhouse, a mediator with Intercede Mediation/ADR Services in Charlotte, says that many of cases he sees involve business disputes where it would be best for all sides if they could resolve their differences and remain in business together. He recommends letting the clients offer their own ideas for possible resolutions, which makes them feel more invested in the process and thus more likely to work things out.

“I’ve had situations where lawyers were intent on making their point and getting the advantage in some way. So sometimes the mediator will ask the clients to leave the room and talk to just the lawyers, and I have had a couple occasions where it was a particularly contentious case where the lawyers were going at it tooth and nail, and while the clients were in the reception room, the clients settled the darn case,” Shannonhouse said.

Clare recounted a story about a case where the defendant had hit a child who was riding a minibike. The child recovered well, but the two sides were far apart on a monetary settlement until the insurance adjuster offered to pay to buy the child a new minibike. Clare was initially skeptical of the idea, but that offer ultimately wound up helping to settle the case.

Keep developing your skills

All of the mediators interviewed for this story agreed that in the years since mediation became a required part of litigating cases, attorneys in the state have become appreciably more skilled at using the mediation process effectively.

Buchan said that he was a skeptic when mandatory mediation was first implemented and expected that it would not add anything to the traditional settlement negotiations between the lawyers.

“I was flat wrong,” Buchan said. “Both lawyers and clients have come to understand that putting opposing parties and their lawyers in a conference room where they have no choice but to hear detailed presentations of the other side’s case, to discuss settlement options, and get a stark reminder that the expense and inconvenience of trial preparation and a chancy trial are just ahead gets cases settled, or at least ripe for settlement, before trial.”

Shannonhouse said that in the early days of mediation, some lawyers adopted the attitudes that they saw on television—a desire to win at all cost and be rude and vindictive to make a point and win.

“But that doesn’t work so well in mediation, and as lawyers saw the process being used and cases being settled, they learned the skills of mediating,” he said. “They took some advice from mediators that shows you might do better by listening and being sure the other party knows that you understand their point of view. Then that person on the opposing side is not as intent on being right. They would rather be understood, and if you let them know that they are, that helps.”

Follow David Donovan on Twitter @NCLWDonovan

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