Tips for Working with Lawyers in Mediation

  1. Appreciate and support the importance of the lawyers protecting their clients. The way mediators see lawyers is often a self fulfilling prophecy. Instead of seeing the lawyers as a problem to begrudgingly deal with or work around, view the lawyers as an important part of the team.
  2. Don’t try to convince a lawyer he or she is wrong. Try to understand why they think they are right. Listening by the mediator is far more effective as lawyers are more likely to listen when they feel listened to first. And the mediator’s own understanding of the problem may change from listening to the lawyer rather than challenging him or her.
  3. See lawyers as people too. While they are participating in a professional capacity, lawyers have feelings and aspirations that impact them, their clients and the process.
  4. Don’t fight lawyer aggression with aggression. It almost always leads to further aggression.
  5. View lawyers as a great resource for problem solving and creativity.
  6. Create the opportunity for a conversation about the law which is separate from the conversation about what is important to the parties. Respect the parties’ and the lawyers’ decisions about how important they want to make the law and watch out for our own tendency to direct people based on how important we think the law should be in the solution.
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Why Should Lawyers Be Interested in Joint Mediation Meetings?

We keep hearing from mediators that they would like to have everyone meet in the same room, but the lawyers don’t want to. There are compelling advantages for the lawyers, the mediator and the parties to consider in deciding whether to meet jointly rather than separately. Mediators recognize that lawyers are often a driving force in mediations, so mediators need the lawyers’ active support and agreement for joint meetings to be successful. The dialogue often starts in the initial conversation with the lawyers.

One advantage is that the lawyers and parties have more control over the outcome and process, e ven though they sometimes feel they have more control if they are meeting separately because the lawyer can shield a client from the other side, particularly in a situation in which sensitive information is disclosed to the mediator. However, there is then enormous reliance on the mediator’s judgment regarding what information is revealed and what outcome may be acceptable to the either side. In a joint meeting, the parties and lawyers are privy to unfiltered content and can make their own independent determination regarding what would be acceptable to the other through observing both verbal and nonverbal communication.

Another advantage of a joint meeting is the possibility for parties to hear and be heard by each other, which is particularly important for many people to be ready to let go of the conflict and come to resolution. Lawyers who are sensitive to their clients’ emotional states recognize that what may lie at the root of irrational behavior of a client is the parties’ frustration at not being understood, or being misunderstood by the other.
A third advantage is the ability to have a conversation about the law, which is often an important stage in the mediation. It can be enormously educational to parties to hear about the law not only from their own lawyer but also from the mouth of the other lawyer. This is further enhanced if the lawyers are willing to take the additional step of going beyond posturing and discussing the legal risks their clients face.

Another opening that can occur in joint meetings is for the parties to understand what is important to themselves and the other by being present when they speak about what is really at stake for them. A live conversation helps them to appreciate the realities of their situation in a more immediate and visceral way than can happen through separate conversations with and reports back from the mediator.

The participation of lawyers and clients together with a full understanding of the situation provides unparalleled opportunities for creativity and synergy that come from the physical reality of having everyone together.
Is this for everyone? Of course not. Is it right for all lawyers and parties? No. But having a thorough and honest discussion with lawyers and parties together regarding the process is an opportunity in and of itself to have a different experience of everyone’s relationship to the conflict.

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Looking Toward the Future, While Taking Account of the Past

When disputes are resolved in court, judges generally make a decision based on how the law applies to what happened between the parties – to past events. This keeps the dispute, and the parties in the dispute, generally oriented to the past. One reason mediation makes particular sense to parties is that the focus can be on what is important for the parties in their lives presently and going forward. Many parties to disputes, whether business people, divorcing spouses or others can easily become stuck in the past. “Conflict” readily keeps them focused on bygone grievances, hurt and justifications. Understanding can soften the hold that conflict’s focus on the past can have over them, and allow them to build greater understanding toward the future. If the focus is exclusively toward the past, it is easy to become or stay stuck there.

A focus that looks forward does not mean, however, that it is wrong to talk about what happened in the past (as some approaches to mediation suggest). Indeed, it can often be critically important to clarify, understand and to receive and express understanding for each other’s perspective on what happened in the past that can allow for a fuller and more whole-hearted movement into the future. This work can be important for individuals when they want the resolution to take account of the hurt and angry feelings that may have been so central to the dispute even if they will not have a future relationship. It can also be particularly important and desirable when there is ongoing relationships such as between parents in a divorce or business associates as they continue to interact in the future. A firm ground going forward can be built upon a fuller understanding of what happened in the past. To do so means creating the opportunity for letting go of the hold that “judgment” can have over us and being open to the meaning that understanding can have for us.

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Looking Beneath the Dispute to What is at Stake for Both Parties at a Deeper Level

The positions that we take when we become mired in conflict easily and naturally become reified and take on a life of their own. We are “for this” and “against that,” and our adversary obviously (and we believe, malevolently) seeks the opposite. When we look beneath the problem that has emerged in terms of the surface positions, we often find that we have more in common that we thought, and at least what is important to each of us might not be mutually exclusive.

In terms of people’s experience at a more personal level, the challenge is how to talk with each other and in the presence of each other about what is important to us in our lives. That is particularly difficult when we have had difficult or hostile relations with each other. Since our most basic needs are for survival and self-protection (including our families and others closest to us), protection against the other becomes understandably the highest goal when the other appears to pose a threat. We are often so intent on protecting ourselves against what we are convinced is the overreaching or hostile intent of “the other,” not only can we not see their humanity, we can easily lose sight of our own. Mediation can allow the possibility of moving toward a greater acceptance of the other and, simultaneously, to a fuller acceptance and recognition of the depth for understanding within ourselves.

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Upcoming programs

Fall 2013 Advanced Program on Contracting, Northern California This advanced training is available to those who have already participated in on our Mediation Intensive Training Programs, and focuses on contracting, the agreement to mediate. We will focus on the practical elements and aspects of contracting as well as the deeper motivations and interests in the parties’ seeking to develop agreement about working together. The training will take place on November 15, 2013, at Green Gulch Farm in Muir Beach, CA from 9:00 am to 5:00 pm.  Gary Friedman and Catherine Conner will present.  The training offers 7 hours of MCLE/BBS. Register and learn more here.    

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