The Rules of Professional Conduct define a lawyer’s role to the client as both an advocate AND a counselor. There is no more important place to serve in both of those roles than at mediation.
Although advocating at mediation is different from advocating in the courtroom, there are certain crucial ways for a lawyer to advocate for his or her client at mediation.
First, the lawyer needs to remember the setting – mediation, not trial. What works in advocating at trial may not work so well in advocating for the client at mediation.
One way to advocate for the client at mediation is to be sure you are communicating clearly with the mediator. Communicate the issues of the case and client’s position with mediator. Be clear, with brevity.
As a mediator, I commonly walk into a room where the lawyer and client are sitting, and the lawyer wants to do all the talking and arguing of the client’s case, as if I were the judge. Honestly, this can be a waste of time.
That said, it is helpful for the lawyer (as advocate) to construct the case for the mediator from the client’s perspective or benefit – tell the mediator the client’s story.
Another time when advocacy is crucial is when mediator is not understanding something. Maybe the client miscommunicated something to the mediator. Maybe the mediator just isn’t getting it. When the mediator is not understanding something crucial, the lawyer needs to speak up and guide the mediator to understanding.
Another time when the lawyer must advocate is when the mediator is wrong. Maybe the mediator is operating on a misunderstanding about the law. Or about how the law applies to the facts of the case. The lawyer needs to GENTLY show the mediator toward a correct understanding.
In addition to being the client’s advocate, the lawyer is the client’s counselor. It’s the lawyer’s role to give sound advice to the client to help the client make good decisions based on the client’s particular situation.
Help the client understand the law.
Help the client understand the cost of continued litigation.
Be practical, be pragmatic, and help the client be pragmatic.
Prepare the client for mediation ahead of time. Describe the mediation process to the client.
Gather necessary information prior to mediation to enable client to make informed decisions at mediation. Use spreadsheets, graphs, charts to help the client understand.
Help the client understand what he or she is agreeing to.
Finally, be open to and prepared for out-of-the-box suggestions by the mediator. Help the client understand these suggestions and the legal ramifications of such settlement possibilities.
These are just some ways the lawyer served as both advocate and counselor at mediation. I’d enjoy hearing other ideas on this topic.
Chappell Smith & Arden, P.A.‘s guest blogger, Attorney Shawn L. Reeves, blogs on topics involving family law, which is an area that those of us at CSA do not handle. But we are dedicated, through this blog, to advancing the conversation in all areas of the law and are thus proud to bring you Shawn’s commentary. Enjoy!