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

In this series of posts, I have discussed the roles of lawyers in the mediation process.  This post continues that discussion.   Now that the lawyer and client have chosen mediation as a way to handle the dispute, the lawyer may  wish to: Explain what is expected of the client during the mediation. Remind the client that the object of mediation is not to “win,” but to reach a satisfactory resolution.  Remind the client that mediation is simply a continuation of earlier negotiations. Encourage the client to value in the mediation process the pre-existing relationships between the parties or the improved relationships mediation can create. Ensure that the client or client’s representative has authority to settle. Discuss who will give each portion of the presentation and the role the client will play in the overall process and decision-making. Advise the client to develop a working relationship with the mediator, use the me

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

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.   A recently published book finally puts in one place much of the good advice on representing clients in the process.   See Harold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).   Dwight Golann has also authored a new book called Resolving Disputes that he says reflects the perspective of lawyers representing clients in ADR processes.   Several law firm websites now have pages dedicated to preparing clients for mediation.   Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative opti

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.   By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent .  These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.     Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.   Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.”    In other words, most judges spent less tha