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Working With Lawyers: 16-Hour Advanced Civil/Commercial Mediation Training with Stalder Mediation
December 12, 2019 - December 13, 2019
Working With Lawyers in Mediation is a two-day program exploring the role of lawyers in mediation, and examining how we as mediators can structure the mediation process to optimize lawyer participation, while also maintaining a focus on party engagement. The program will introduce techniques and strategies that mediators can use to encourage meaningful engagement of both the lawyers, and their clients. Particular emphasis will be placed on achieving this while working together, in a non-caucus mediation model (in which the parties, lawyers and mediator work in the same room for the duration of the mediation).
Some of the challenges and concerns that will be addresses are:
Many mediators view the participation of lawyers in the mediation processas at best, an inconvenience, and at worst, a direct impediment to productive dialogue and problem-solving. As a result, many mediators seek to minimize the participation of lawyers, either by suggesting that they not participate in the mediation at all, or, when this is not feasible, by focusing the dialogue in mediation on the parties, and attempting to minimize lawyer participation.
Other mediators view the participation of lawyers as necessary and welcome. However, they assume that by virtue of lawyer participation, the conversation in mediation should largely revolve around the lawyers’ perspectives on the legal elements of the case, often unintentionally to the exclusion of the interests and needs of the parties themselves.
Regardless of mediator enthusiasm or ambivalence regarding the participation of lawyers, it is often assumed that the complexity of the dynamics presented by lawyer participation, and the potential adversarial frame that might emerge by virtue of lawyer engagement, augers strongly for the use of caucus: whereby the parties are separated and the mediator works privately with each side. This impulse is further reinforced by the assumed unwillingness of lawyers participating in mediation to engage in meaningful dialogue in the presence of their adversary, and lawyers’ extreme caution in permitting their clients to speak in the presence of the other side.
Many lawyers representing parties in mediation maintain a deep skepticism of whether the mediation process itself is in their client’s (or their) best interest. The less formal and potentially unstructured nature of the mediation process lends an air of uncertainty to participation in mediation. This uncertainty in turn presents risks: risk of disclosing valuable information without reciprocal information-sharing from the other side; risk of their client speaking and unintentionally disclosing more information than intended; risk of the other side not participating meaningfully in the mediation process and instead using it as an opportunity to gather information or try to get ‘free discovery’; risk of telegraphing a perceived weakness in their case through projecting a willingness to settle; risk of the lawyers themselves being subject to malpractice suits for not effectively managing the many risks of the mediation process, and many other concerns.
Lawyers may also question how they are perceived by the mediator, and they consequently may have concerns about whether their agreement to participate in the mediation process could potentially lead to a marginalization of their role as effective advocates for their clients.
Even in instances where lawyers view mediation in a generally positive light, questions often arise around how they can most effectively advocate for their clients, what the lawyer’s role in mediation should or can be, and how to ensure that their client’s legal claims are not compromised by virtue of their participation in the mediation process.
For many parties participating in mediation, there are conflicting impulses as well. On the one hand, they might want the opportunity to engage directly with the other side, both to air grievances and express priorities and concerns, but also to problem-solve directly with their adversary. On the other hand, they might have concerns about the scope and tenor of this engagement, and may also be concerned about running afoul of their lawyer’s strategy and guidance.
Given the many concerns and complexities attendant to lawyer participation in mediation, it comes as no surprise that the role of law and lawyers is often an elephant in the mediation room that limits the scope and utility of the mediation process itself. However, in our experience, this need not be the case. Mediation affords a unique opportunity to all participants (parties, lawyers and mediator) to structure a dialogue that can address the many legitimate concerns of all participants, while also leveraging the potential benefits of working together in the mediation process.
In our view, the participation of lawyers in the mediation process can be a powerful tool toward furthering understanding, ensuring that parties’ interests are protected, and creating effective and efficient problem-solving frameworks that support parties in resolving their dispute. Structuring a process that supports meaningful lawyer engagement in this way presents a challenge, but also a great opportunity.
Join us for this two-day examination of the role of the law and lawyers in the mediation process. Through intensive role-play work and large and small group discussions, we will explore:
- What role the law can, and may, play in the mediation process.
- The concerns around lawyer participation in mediation, particularly in a non-caucus mediation model.
- The possibilities that emerge from lawyer participation in mediation, particularly in a non-caucus mediation model.
- How to structure the mediation process to optimize the participation of lawyers and their clients.
- Techniques to address common resistance points and impediments to lawyer and client participation in the mediation process.
- Ways in which non-caucus techniques for working with lawyers and their clients might be applied in a caucus setting.
- Our own relationship to the law and lawyers (both for lawyer and non-lawyer participants), and how this may impact and inform our decisions and interactions as mediators.
Who Can Participate?
This is an advanced training and is only open to those who have completed a prior Basic Mediation Training. (If you are unsure whether your training meets this requirement, please call us at (917) 580-2253 to discuss.)
*Note that final placement on any court roster is at the discretion of the local Administrative Judge and participation in a course that is either approved or pending approval does not guarantee placement on a local court roster.
The Center for Understanding in Conflict is co-presenting this program with Stalder Mediation.
Please click here for more information or to register