Originally posted on 3/18/2021 (reformatted).

As a follow up to a posting a couple weeks ago, I indicated there would be a second article detailing what not to do at mediation. Scott Brinkmeyer was one of the speakers who presented during the joint webinar on 2/18/21 between the ADR Section and the YLS. Read on to learn more about what Scott says are “no-nos” during mediation.  (The following material has been found in Scott Brinkmeyer’s handout entitled “Seven Highly Unsuccessful Habits of Mediation Advocates.”)

First and foremost, he cautions about the danger of not involving the client in planning and strategizing the mediation session. Rather, the attorney advocate should explore the client’s expectations about possible outcomes to determine if the client’s vision of the end result is realistic and attainable. Additionally, time should be spent counseling the client concerning risks at trial, cost of litigation, and analyzing the other side’s position. Secondly, to ensure a well-developed strategy, Scott advises that the advocate should create a series of possible moves, similar to a chess game strategy, rather than leaving the process up to the mediator. Rather the well-prepared advocate develops a detailed strategy, incorporates the client’s opinion regarding the same, and analyzes the opponent’s position.

Scott’s third tip flows naturally from the second where he encourages attorneys to prepare for mediation as if they were preparing for trial. You wouldn’t “wing it” for trial, why do so for mediation? While considering your plan of action and preparation, Scott encourages zealous advocacy to be kept in moderation. Mediation is about compromise and facilitative behavior. Therefore, be prepared to advocate for your client but also be prepared to make some concessions.

The next tip? Avoiding joint sessions at all cost. During mediation, Scott advises that joint sessions between the parties and attorneys can be helpful. Rather than head straight into caucus, consider keeping everyone in the room for part of the session.  As a mediator, Scott indicates the following  scenario as middle ground, “begin the session by listing on a board all of the issues I’ve gleaned from the parties’ documents and pre-mediation calls, verbally summarize my understanding of their respective positions and either confirm that the list is complete or add what may missing.”

The last two tips are fairly straightforward but are also worth their weight in gold. Lack of effective listening is tip number six. Scott indicates that “too many of us fail to listen effectively, and becoming an effective listener is not only good advice in social discourse, it can be critically important for mediation advocates.” As advocates, we must learn how to ask good, open-ended questions as well as listen closely. Both skills will help advance the chances of developing a nuanced settlement. Additionally, the last habit to avoid is “not putting your cards on the table.” While sometimes it is important to withhold information until a more advantageous time in the case strategy, Scott warns against duplicitous behavior as well not sharing enough information that can help move the case forward. Clients should be prepared by their attorneys for all stages of mediation and actively participate in the negotiation process.

In sum, Scott provides several valuable and insightful tips for preparing the client for mediation as well as navigating the process. By incorporating both Shell’s and Scott’s techniques, we can advance as lawyer advocates in our ADR practice.

Kristina Bilowus

Michigan State University College of Law

East Lansing