Forde, Gerard --- "Advocacy at mediation" [2015] PrecedentAULA 8; (2015) 126 Precedent 26

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ADVOCACY AT MEDIATION

By Gerard Forde

The skills to be applied by an advocate at a mediation are vastly different to the skills an advocate uses at a trial or at the hearing of an application.

THE DIFFERENCE BETWEEN MEDIATION AND A TRIAL OR HEARING

At a trial or hearing, the advocate is attempting to persuade an impartial adjudicator – whether that is a judge, magistrate, tribunal member or an arbitrator – to find in favour of the advocate’s client. At mediation, the advocate is attempting to persuade a party who is personally involved in the dispute to give more than they are prepared to give, in order to bring about a resolution. While the adjudicator at a trial or hearing must give a decision which is (hopefully) correct in fact and in law, a party to a mediation does not have to agree to settle but, with the proper advocacy, may be persuaded or enticed to do so on terms that may not be wholly supported by the facts or the law.

The attacks and criticisms typically made during a hearing in order to persuade an adjudicator will often, if made during a mediation, be counterproductive by inflaming the dispute: the opposing party may take such attacks or criticisms personally and become defensive as a result. Such a development is likely to be yet another obstacle that the parties must overcome before a settlement can be reached.

Accordingly, the advocacy that one uses at mediation must be framed in such a way that gets your points across without introducing further personal animosity between the parties, who are the decision-makers at the mediation. Similarly, if animosity already exists between the parties you, as the advocate, must try to defuse this animosity so as to entice the other party to do a deal with your client. None of these skills or tactics is required when you are trying to persuade an adjudicator in a court setting. But they are essential when trying to obtain the best result for your client in a mediation setting.

In my experience, both as a mediator and as an advocate, I have found the best results are achieved by applying the following tactics, although each case is different and you, as the advocate, must be prepared to be flexible.

PREPARE YOUR NEGOTIATION STRATEGY

To do this, you need to take a number of steps including:

Step 1: You and your clients will need to work out their Best Alternative To A Negotiated Agreement (BATNA). That is, what is the best result they can hope for if they do not settle at the mediation?

Step 2: They should then compare it with their Worst Alternative to a Negotiated Agreement (WATNA).

In assessing BATNA and WATNA, discuss with your clients, in the event that settlement does not occur:

(a) how they are going to pay for the costs of litigation that is yet to come (giving them your best estimate as to how long the litigation is likely to take);

(b) how long will the litigation take;

(c) whether they will recover anything from the other side even if they win, and if so, how much will they recover. How much will that leave in their pockets at the end of a successful litigation?

(d) how else would they use the time and money they are likely to spend up to the end of a trial, if they can settle the litigation at mediation?

(e) what happens if they lose?

(f) can they afford to lose?

(g) will a loss cost them their home?

(h) how would they pay for judgment, if judgment were entered against them for a claim or costs?

(i) what is the emotional cost if the litigation were to continue? That is, the emotional cost to them, their family and their business;

(j) what is the likelihood that the other side will take the matter to court?

(k) what are the advantages of settling?

(l) what are the disadvantages of settling?

Step 3: You and your clients need to determine the realistic prospects of each of these outcomes and compare them with the most likely outcome if the matter were to proceed to trial.

Step 4: Try to work out your opponent’s BATNA and WATNA and what will be motivating them to settle or not settle.

Step 5: Find out as much as you can about your opposing lawyers and their clients. Are they reputable, straight shooters, slippery or dishonest? Are they bullies? Warn your clients about them and what to expect, so they are not taken by surprise or misled at the mediation.

Step 6: Prepare what your opening offer will be, but do not make it until you have heard everything from the other side. This allows you to adjust your position if you hear something new or unexpected during the opening joint session at the mediation.

CLIENTS RARELY UNDERSTAND COMPLEX LEGAL ISSUES

Clients rarely have a deep understanding of complex legal issues. They arrive at the mediation as part of a team comprising them and their lawyers. They will have been advised of their legal position by their lawyers and it is highly unlikely that anything said during a normal mediation will persuade your opponent’s clients that the advice they have received is wrong.

Unless you have an unequivocal authority directly on point, I suggest that you do not waste too much time trying to convince your opponents that their version of the law is incorrect. Your opponents may well know that the position they have put forward is incorrect, but they will not openly concede this at the mediation.

In cases that involve complex areas of law, any attempt you make to address the legal issues should be done in such a way as to not attack your opponent. If you attack them, the other party will, as part of a team, feel obliged to come to the team’s defence and support their own lawyers. A better result is often achieved by a strategy such as – “Your lawyers have said XYZ; we understand the argument, but we are of the view that it is really ABC because of Smith v Jones. If the court finds it is ABC, then of course our clients will win.”

Such a comment tells the opposing clients that you understand their legal argument but disagree with it and raises the prospect that an adjudicator might find against them. Behind closed doors, the client, if they understood, will ask their lawyers about ABC and if their lawyers are being truthful and competent, they will tell their client about the risks associated with the arguments and the possibility that your argument of ABC might be upheld.

SPEAK TO THE PARTY AND NOT THEIR LAWYERS OR THE MEDIATOR

Mediation is the only opportunity that an advocate will have to talk directly to the opposing party in an attempt to persuade that party to change their position. At a trial or a hearing, you will be able to cross-examine the other party if they give evidence, but that is to elicit evidence or concessions, not to make submissions so as to persuade the other party that they should agree to your position. All the persuasion in a trial or hearing is addressed to the adjudicator, who has no emotional involvement in the dispute.

One often sees lawyers talking to the mediator as though the mediator is a judge. The mediator’s role is to facilitate a resolution. They do not and should not make decisions as to who is right or wrong in the mediation. They often get a party to move by helping that party to appreciate the uncertainty and risk associated with that party’s position. A competent mediator will follow all the points raised during the joint session, even if they are not addressed to the mediator.

Similarly, lawyers often address the other lawyers at the mediation and I have often seen the clients lose interest or any understanding of what is being said, as they are not part of the conversation. In 25 years of practice, I have never seen a lawyer capitulate in a mediation and openly admit that they were wrong. I have seen lawyers leave a joint session only to be asked by their client, who was unable to follow what had happened, for an explanation of what has been said. I have then seen that lawyer misrepresent what, or at least the strength of what had been said, so as to avoid further questions from the client. All the potentially good work is undone because the advocate has not spoken directly to the opposing client to ensure that they have understood what it was that s/he was saying.

Speaking directly to the opposing party will have a number of advantages, including:

(a) You will be able to read them to see if they are following what it is you are saying and you will be able to adjust your advocacy accordingly so as to ensure they understand your client’s position and the risks associated with their own position;

(b) You will be able to see which of your points have the most impact on your opponent and will be able to use that to your advantage later in the mediation;

(c) You may get a feel for what type of witness the opposing party will make at trial and how they will perform during cross-examination;

(d) The opposing party will get a very small taste of the pressure and stress that might come with appearing in court and being cross-examined. That said, you must be careful not to cross the line and force the party into becoming defensive and feeling honour bound to take the matter to trial so as to be ultimately vindicated by a judge.

BE CLEAR ABOUT WHAT YOU HOPE THE MEDIATION WILL ACHIEVE

Before saying anything during the opening joint session and the subsequent negotiations, ask yourself:

(a) What message am I trying to send?

(b) How will the other side take what I am about to say?

(c) Will their reaction result in a benefit to my client or will it make reaching a deal harder?

(d) How can I best phrase my message to get the most benefit for my client?

This is particularly important with your opening offer. To ask for too much can send the message that you have not listened to what the other side has said and that you are being unreasonable. That will inevitably be matched by a similarly unreasonable response and both sides will have started the negotiations with the view that the other side is being unreasonable. Do not ask for too little either, as you need to give yourself room to negotiate and you do not want to send a message that you believe your case to be weak.

RESPOND CAREFULLY TO THE OTHER SIDE’S CASE

After the other side has presented their case, be careful with your response. At the very least, give the other party the impression that you have listened and understood their position. If they do not feel that they have been heard, they will be reluctant to negotiate with you. Rather than saying, “You are wrong and I am right”, ask them to explain XYZ. Alternatively, you may consider saying something such as, “I hear what you say – but as you can appreciate, we take a different view.”

When you make your first offer, you could acknowledge their position and state that while you disagree with it you have made an allowance for the risk that the court may find in their favour on that point.

REMAIN CALM AND COLLECTED

Do not let yourself take your opponent’s conduct personally. Always be polite and, if necessary, firm. Both clients will be watching you and if allow yourself to be seen to be getting flustered or letting the other side’s advocate get under your skin, your client’s confidence in you will be undermined and the opposing party’s confidence in their advocate and in their own case will be fortified.

BE PREPARED FOR UNUSUAL TACTICS

The following strategies may be of assistance:

(a) Don’t create obstacles by taking offence to the way your opponent or their client has put their case or is acting during the mediation.

(b) If the other side is acting unreasonably, ask yourself why. Do you truly understand where they are coming from? Does your client have a realistic view of their own case? What else could be causing them to act the way they are acting? For example, if they have a lack of available funds that would prevent them from settling at that point in time, you may consider introducing a payment plan as part of the negotiations.

(c) Do not bid against yourself. If your offer is rejected, wait for a counter-offer. If the other side refuses to make a counter-offer then tell them and the mediator that you are not going to bid against yourself and ask them where they want to go from there.

(d) Make it known to the other side that you will not be forced into a deal. You may consider saying something like, “We were hoping to be able to reach a deal today; however, if you are not willing to compromise then we are at a loss to see how that can occur.”

(e) If your opponent issues a threat or an ultimatum, you will need to be careful with your reaction. You need to ask yourself whether they are likely to carry out the threat and, if so, how you can diffuse it.

BE PREPARED FOR AN IMPASSE

(a) It is best to try to avoid an impasse arising. I often recommend that people use the mediator to assist with the negotiations, as the mediator will have been in your opponent’s camp and will have a feel as to where the negotiations might lead. The mediator will be able to assist you with the formulation of your offers without breaching the confidentiality he or she owes to your opponents.

(b) You can try to introduce objective standards of fairness to the dispute. It often assists somebody to move from their position if for them to do so can be seen as them acting fairly. For example, a party may be prepared to move if it would be fair that both sides shared the pain in compromising from the positions that they now find themselves in.

(c) Try to make it unreasonable for your opponents not to move from their current position. You may refer to the opponent’s BATNA when compared with the current position of the negotiations to show that they are being unreasonable.

(d) One tactic is to summarise the negotiations up to that point and say that your client is prepared to co-operate in order to find a solution, but that the parties are currently too far apart. You could ask what the other side proposes as a method of moving both parties forward.

(e) If the other side refuses to move, it could be that the positions are at a stage where your client will not be able to get a better deal. It may be that it is time for your client to make a decision as to whether or not a deal is to be done or to walk away from the mediation completely or adjourn the mediation to another day.

(f) You could consider introducing offers that contain options, such as time and money, or “pay me $X or sell to me Y for $Z”. Such offers can have the effect of taking your opponent’s mind away from not moving to considering options, and might get the negotiations moving again.

As an advocate at a mediation you have the luxury of being able to address the opposing client and draw out a resolution that can be more advantageous for your client than a trial could produce. Unlike a trial, the advocate at a mediation can enlist the help of the mediator to assist in enticing the opponent to offer up more than they have. Use the mediator to your advantage. The advocate at a mediation cannot force a decision or an agreement to be made. As a mediation involves enticing rather than forcing, it pays to bear in mind the adage ’You can catch more flies with honey than with vinegar’ when acting as an advocate in a mediation.

Gerard Forde is a barrister and accredited mediator in Brisbane. PHONE [phone] EMAIL [e-mail].