Advocacy vs. a Mediation Mindset

Advocacy vs. a Mediation Mindset

I had an interesting experience in a mediation (as mediator) that has stuck with me for a long time.  It’s really made me think about an attorney’s mindset in heading into mediation. This particular family law mediation, like most, started with the parties in separate conference rooms, as neither party wanted an initial joint meeting.   The only issues involved property, as the parties had no children. I knew both attorneys well.  As in, neither attorney should have been overly concerned with trying to impress me. 

While in the conference room with Party #1, I discussed the biggest issues and how they might be resolved.  Without going into too much detail, the main issue between the parties was the characterization of significant property interests, so it was almost entirely a legal issue.  The facts about these properties were not really in dispute.  These types of issues are very difficult to mediate, because there is no “right” answer to the legal issue until a judge announces what the right answer is -– and different judges could announce different right answers.    So, the best way to mediate this case would be to discuss alternatives to an all-black or all-white resolution, and see what gray areas the parties could possibly agree on.

As part of this discussion, recognition of each party’s risks in rigidly sticking to a position are necessary.

Party #1’s counsel would have none of this.   He started our caucus mediation session with a presentation to me about why there was no question he would win his case. [Side note: I’m picking on a male attorney here, but just for convenience; this could have happened with a female attorney.]  He put on what I can only describe as an appellate-worthy oral argument about the absolute strengths of his case, and how and why he was going to win the case completely with superior preparation and superior expert testimony.  This argument/ opening went on for about 20 minutes, supplemented by referring to his mediation memo (which was very thorough) and various exhibits.   His client was present for the entire presentation, and if the client wasn’t convinced at the beginning that s/he was going to win everything, I feel sure s/he was convinced of this by the time the attorney stopped talking.

I’ve tried the characterization of property issues to the court several times.  Believe me when I tell you that what was being argued was very much a legal issue, and Arizona’s law on that issue is anything but fully resolved.  Absolutely no one could be certain of winning either side of this argument.

I was floored by this attorney’s approach to mediation.  I was the mediator in this case, and not a trier of fact.   Trying to convince me that this legal determination was simply a question of who is right and who is wrong (and that this attorney was right!) was (a) not supported by Arizona law; and (b) pretty pointless.   I would not be deciding this case.    This approach was contrary to a mediation setting, as the one thing I was sure of was that this mediation would not be resolved with one side walking entirely away from his or her position and throwing in the towel.

I can only describe this method of starting off the mediation as torpedoing any possibility of settlement.   By starting the mediation with his assurance that he would win this case, the day’s atmosphere was set that Party #1 would not compromise or negotiate anything.  Why would s/he?  Party #1 was obviously going to win everything!   The attorney put himself in the position of being unable to back off on any of his positions as the day went on.   He was unable to suggest any compromises or alternatives to his client during the mediation day, because the client’s response was always “but that’s not what you said earlier . . . “

Needless to say, the parties didn’t settle.  I won’t tell you the ultimate outcome of the case after it was tried, but you can probably guess.

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