Thanks to everyone who joined us for our open quarterly webinar on May 27th! We did not have time to address all questions that came through during the webinar, so we sat down with Bruce Edwards and addressed each and every one of those unanswered questions here. Did you enjoy the webinar? In addition to our quarterly open webinars, we also host monthly webinars on various topics for our members. Sign up for any one of our online courses to become a member and begin taking advantage of lifetime benefits like these monthly webinars & more. If you’d like to watch (or re-watch) the webinar, you can find the full recording in our Video Library.
Q: How do you convince your client to be patient, especially if it increases expenses?
A: Remind clients that they need to compare with the alternative. In most cases, the alternative (going through the court system) is going to require much more of their patience, time commitment and expense. Help them to understand that the cost of litigation will be frightfully high compared with mediation.
Q: Who is easier to handle, the party or the counsel to convince that mediation shall be persisted, if the 1st session does not head for settlement?
A: Usually the client, if they have not been properly prepared. The lawyer should have more institutional knowledge and experience about what it takes to bring about settlement. Clients seem to be more impatient, often thinking about the total time in the dispute, NOT just the time in mediation. This is when the pre-mediation client preparation is crucial.
Q: The litigation process means that lawyers are going to be paid for several years or even more, on the other hand mediation is fast and focused on mutual agreement, how do you think, is it an obstacle for lawyers to participate in mediation process?
A: This is a question I get relatively often, especially in my international travels. Even in the US, when we first started commercial mediation, I used to hear that often. It takes time to overcome historical traditions and limited thinking but it does happen. And once the momentum begins, it is quick to take hold as all stakeholders realize the benefits. Ultimately it is going to be important for clients to understand the dispute resolution alternatives. And for lawyers to take the big picture perspective for developing a reputation of meeting their client needs. As I said on the webinar, mediation advocacy skills are not intended to replace litigation advocacy skills, rather to extend the lawyers skills set. So get a reputation for meeting your clients needs. And more clients will follow.
Q: Does the mediator have a role in this advocacy in terms of motivation and influence even in facilitative mediation?
A: Absolutely. The lawyers work with the mediator to accomplish those objectives.
Q: Can it be said that being fair minded is an important prerequisite in mediation advocacy?
A: My first response would be: fair-minded by whose definition? But as a general concept, yes. Especially to the extent it promotes empathy and good behavior.
Q: How about when one lawyer acts with mediation advocacy skills but the other lawyer clearly behaves like a litigation advocate?
A: The mediator will attempt to assist the litigator (the one acting like a litigation advocate) so he doesn’t jeopardize the process. But ultimately the mediation advocate is free to not reward bad mediation advocate behavior. Unfortunately, I see that happening often in my world. And that is part of the reason for this webinar.
Q: What you can say about litigation? How we can deal with litigation to our clients?
A: Lawyers need to distinguish it from mediation and tell clients that there will come a time for litigation. It’s not one vs. the other, rather it is good to try the most efficient and beneficial process first.
Q: Are there strict rules of evidence to be adhered to in meditation processes?
A: No. But most lawyers will consider rules of evidence in evaluating what information will persuade others and especially clients of their changed position.
Q: What do you think about advantages and disadvantages of ODR, for advocates?
A: Do you mean ODR or virtual mediation? With the COVID19, the traditional lines and definitions have blurred. ODR is typically used without lawyers and in high volume, smaller disputes (EBay for example). eMediation is a relatively new term describing dispute resolution both with text and video conferencing for simple cases, again without attorney representation (neighbor disputes for example). Virtual mediation is essentially what I’ve been doing since we began our shelter-in-place. At JAMS, we use the zoom platform and all parties have representatives. We have joint sessions and private caucuses, depending on the dispute. All parties are represented.
ODR definitely has a role in the ADR continuum but is not really germane to this discussion. The mediation advocate skills are the same; the mediation advocate just to be more focused in a virtual environment. Here is a blog I wrote at the beginning of our shelter-in-place order. I may be updating this moving forward.
Q: Can you talk a little bit more about how attorneys and clients should design the right process?
A: Designing the appropriate process begins by understanding the different types of processes available and variables of your specific dispute (for example, should it be focused for a 1 day or multiple days, what would be the right mix of face-to-face and private sessions, the type of case and the specific needs of your client). This could could be a topic of its own webinar; hard to answer in an email.
Q: Are there situations where mediation is not the best way to proceed?
A: Limited situations but there are a few. More often this is a question of timing as opposed to whether mediation is right. However, in some instances the parties need legal precedent or parties will face an onslaught of multiple claims and don’t want to settle because they don’t want to encourage more claims.
Q: Is litigation is not good?
A: There is undoubtedly a place for litigation in our legal worlds. Still, we’re increasingly learning that there are aspects of litigation that are time worn and do not meet the needs of the present world. Again, as I described above, mediation advocacy skills are meant to supplement litigation skills, not supplant them.