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This determination may be made at the closure of any given session. The time and place of future sessions should be set. Tasks should be assigned as to what is necessary before the next session. For example: Is further discovery necessary? Is documentation necessary? Are there other parties who need to be involved? Is expert opinion or information needed?

Third, sometimes even the most effective mediator cannot assist the parties in reaching an agreement. Most mediators will close on the most positive note possible even if no agreement is forthcoming and future sessions would be unworkable. Experience has demonstrated that even in those instances, a final resolution is often reached at some point after the mediation.

F. Role of the Attorneys/Lawyers for the Parties in the Mediation Process

There is a common misconception that alternative dispute resolution supplants the traditional role of the attorney as an advocate. An attorney, as advocate, should be well prepared on all aspects of the case including the facts, the issues and the legal implications and ramifications. This does not change when an attorney is involved in mediation. As cases are negotiated, so are they mediated. The utilization of and referral to mediation is not an excuse for being unprepared or unfamiliar with the case. However it is also imperative in the mediation context that the attorney look beyond the legalized case and also explore the client’s objectives and interests. In other words, the lawyer should be looking at the various ways to solve the problem with the client.

Prior to the mediation, the attorney should analyze his or her case. The attorney should first focus on what the client’s position is. Then, by contemplating the “why” of a particular position, the attorney can look toward developing the interests of the client. The attorney should formulate and list all possible alternatives which might meet those interests and should ask what the result of not reaching an agreement in mediation will be: What will it mean for the client in terms of cost, both objective and personal? What will be the likelihood of success at trial, and at what cost? Is the case going to settle eventually? What are the probabilities associated with each option and consequence?

Next, the attorney should analyze the other side’s case in the same way. What are the strong and weak points of both sides? Additionally, the attorney should try to determine the areas of possible agreement and give and take and discuss these matters with his/her client.

The attorney should find out what the particular mediation format will be, because there are substantial variations. Will the mediation be confidential? Are there written guidelines or other governing policies? If so, the attorney should acquire these before the mediation session and discuss them fully with his or her client. Will the mediation be face-to-face with all the parties present, or will it be typified by a caucus method or shuttle mediation?

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In some cases, attorneys may actively participate or provide input in developing the format of mediation, both pre-dispute and post-dispute. This can include utilizing mediation clauses in contracts, temporary orders and decrees.

The role of the attorney in a mediation session may range from active participant to observer/advisor. The lawyer-advocate attends the mediation on behalf of her client, and it is important that she be provided an opportunity to present the case as she sees it. Unfortunately, very aggressive presentations by advocates tend to obstruct settlement. As more lawyers become educated and familiar with the mediation process, however, they realize that advocacy in mediation is not the same as advocacy in a trial or in arbitration. Where the neutral third party is a decision-maker, the advocate’s role is adversarial. But mediation is a non-adversarial approach to conflict resolution, thus the lawyer’s role should be different. Nonetheless, some lawyers still choose to utilize a competitive or adversarial approach in opening statements at mediation. In many cases, mediators attempt to constrain some of this prior to the presentation. The mediator also reinforces the non-adversarial nature of the attorney’s role during the mediator’s introduction. Many lawyers feel compelled to present the case in an adversarial manner because they assume that is what the client expects. And, in fact, many clients probably do expect this, not realizing the considerable difference between a trial and mediation. Part of the mediator’s role is to reduce the aggressiveness of the presentations by convincing the lawyers and clients that such an approach is not necessary in the mediation process.

The attorney should prepare the client for the mediation process. Prior to the mediation, it is appropriate for the attorney and client to brainstorm about the legal issues, client’s interests and opposing client’s interests. The attorney should explain the mediation process to the client, distinguishing it from the typical courtroom procedure and decorum that the client may be expecting. The attorney should review with the client what the participation levels of both the client and the attorney will be in the process. The mediation is likely the first time the parties have heard the case presented by the opposing lawyer. Therefore the parties should be encouraged to listen. By doing so, a party may see the matter in a different light, or at least understand the other side better, which in turn may open up discussions and movement at subsequent stages of the process. Further, issues of confidentiality and other tactical strategies should be examined before the mediation takes place. Finally, the client should be assured that the mediation is normally supplemental to any other legal course of action, and full participation in the mediation process will not prejudice the client’s rights.

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