The Red Velvet Lawyer

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion. So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely: Discuss the costs, risks and benefits of not reaching a settlement. Discuss the best result each party can hope for in litigation. Discuss the worst result that could happen in litigation. Ensure that the client knows the facts and issues of the case. Examine the legal and factual strengths and weakness of each party’s case. Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” items.  S

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself. Counseling the Client about Mediation In counseling a client about mediation, a lawyer may wish to cover the following topics: The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute. The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement.  That mediation creates no legal precedent. Whether the case is “ripe” for mediation. Whether the client has sufficient information or disco

Prior to the mediation, I circulate to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher , a well-known St. Louis mediator.  This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case. It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending.   It asks about the status of discovery and how much more discovery the parties need to do.   It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial.    Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far.   It then asks for a candid assessment of the “soft spots” in the claims or

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia .   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional responses, she backed out of the deal.   (These facts come

As I read Seth Godin's new book, The Icarus Deception , I kept asking myself: What is my art?  What do I create joyously, diligently, passionately, and with increasingly greater skill and insight? In the early 1970s, my high school  -- University City High -- had one of the most REMARKABLE art departments in all of St. Louis County.  Staffed by three teachers, the program taught painting, drawing, sculpture, ceramics, and fiber arts. Thirty years later, I still have pieces of art I created at that time: pencil drawings of my boyfriend and the male rhinoceros at the zoo; a bronze cast sculpture of a heavy-bottomed woman; a huge hookah pipe, made of coiled clay, I now use as a deck ornament; a silk screened T-shirt imprinted with an original design; and watercolor landscapes. The program also introduced me to many techniques and materials that I have used fearlessly throughout my life. The course made me a better problem-solver.  About a week ago, I needed to create a "vis