Knowledgeable Attentive Effective

The past decade has brought a substantial growth in the use of alternative dispute resolution procedures as either a supplement to or replacement for litigation, particularly mediation. This development has followed two separate tracks which are now converging. First, lawyers and litigants alike perceived a need to make dispute resolution less costly in time and expense. Second, non-legal professionals sought a dispute resolution mechanism with less psychological cost to the disputants. Each of these threads brings specific, sometime conflicting, demands and priorities into this maturing area of practice. To perform effectively, the advocate must understand the roles of the disputants and advocates in that process, the mediation process, and the special strategic and tactical considerations which should be taken into account to effectively perform as an advocate. This outline focuses on two areas: first, an examination of the strong tensions resulting from the interplay between the ethical obligations of attorney as advocate and the mediation process; second, practical suggestions regarding preparation and participation as an effective advocate in the mediation process in the context of those tensions.

Historical overview

Mediation has long been a part of the legal landscape, but only in the past twenty years has its use moved from specialized application as a dispute resolution framework, as in labor disputes, to the generally held positive perception of application as a supplement and alternative to the litigation process. The initial impetus for this change was in large part founded on the view of many in the psychology community that the litigation process was destructive individually and relationally, particularly in the context of family law matters, and that negotiated resolutions were to be strongly favored over adjudicated resolutions. This view has had significant influence in the development of the definition of the appropriate role of the mediator. In conjunction with this negative perception of litigation, a belief that the judicial system was overburdened and a desire to minimize the growth of litigation arose among the judiciary, leading to discussion at the Judicial Conference of the United States and the American Bar Association, and mobilization toward more widespread use of alternative dispute resolution processes. Thus a second strand was woven into the justification: alternative dispute resolution processes, particularly mediation, were not only good but necessary.

This confluence is apparent in the policy statement found in §154.002 of the Texas Civil Practice and Remedies Code:

It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.

Implementation of this policy, however, raises significant ethical questions and practical problems for the advocate, particularly in the context of mediation.

Foundation for ethical considerations

The Preamble to the Texas Disciplinary Rules of Professional Conduct describes the principles of primary concern as we examine the interplay of the mediation process and the lawyer’s role as advocate participating in that process.

Selected portions of that Preamble provide (with emphasis added):

1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. * * *

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. * * * A lawyer acts as evaluator by examining a client’s affairs and reporting about them tot he client or to others.

3. In all professional functions, a lawyer should zealously pursue clients’ interests within the bounds of the law. * * *

7. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests. * * * The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment.

11. * * * The rules and Comments do not, however, exhaust the moral and ethical considerations that should guide a lawyer, for no worthwhile human activity can be completely defined by legal rules.

Rule 1.02. Scope and Objectives of Representation provides in part:

(a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client’s decisions:

(1) concerning the objectives and general methods of representation;

(2) whether to accept an offer of settlement of a matter * * *

One should especially note the focus of these sections on zealous representation of the client’s interest and the exercise of sensitive professional judgment in balancing the competing demands found in practice. Rule 1.02 is especially important and raises significant concerns, as discussed below, since the client directly participates in the mediation process and is subject to significant pressures not found in traditional lawyer to lawyer settlement negotiations.

Legal basis of court ordered mediation

In the interest of understanding the "bounds of the law" within which we must zealously represent our client, we first examine the statutory and decisional framework within which court-annexed mediation occurs.

What is mediation?

In general, mediation consists of negotiation facilitated by a neutral third party. §154.023 of the Texas Civil Practice and Remedies Code provides the following definition:

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues for that of the parties.

Referral for mediation, procedure for appointment of mediator, and qualifications of mediator

§154.021 of the Texas Civil Practice and Remedies Code provides the basis for referral of pending litigation:

(a) A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure including:

(1) an alternative dispute resolution system established under Chapter 26, Acts of the 68th Legislature, Regular Sessions, 1983 (Article 2372aa, Vernon’s Texas Civil Statutes[Repealed; see now, V.T.C.A., Civil Practice and Remedies Code s 152.001 et seq.]);

(2) a dispute resolution organization; or

(3) a nonjudicial and informally conducted forum for the voluntary settlement of citizens disputes through the intervention of an impartial third party, including those alternative dispute resolution procedures described under this subchapter.

(b) The court shall confer with the parties in the determination of the most appropriate alternative dispute resolution procedure.

§154.022 of the Texas Civil Practice and Remedies Code provides the basis for objection to referral of pending litigation:

(a) If a court determines that a pending dispute is appropriate for referral under Section 154.021, the court shall notify the parties of its determination.

(b) Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral.

(c) If the court finds that there is a reasonable basis for an objection filed under Subsection (b), the court may not refer the dispute under Section 154.021.

The court in Decker v. Lindsay, 824 S.W.2d 247 (Ct. App., Houston 1st Dist.—1992), held that litigants could be compelled to participate in alternative dispute resolution procedure despite objections. In Decker, although appellants raised several legal arguments in support of their position, their primary objection was a practical one: in their view, the case was a simple personal injury case, the parties had "wide-ranging disagreement" over dispositive issues, and a trial would not take substantially longer than the ordered mediation. Predictably, in view of the judicial efficiency thread undergirding the ADR movement, the court wrote:

"A court cannot force the disputants to peaceably resolve their differences, but it can compel them to sit down with each other. Section 154.021(a) authorizes a trial court on its motion to refer a dispute to an ADR procedure. However, if a party objects, and there is a reasonable basis for the objection, the court may not refer the dispute to an ADR procedure. Tex.Civ.Prac. & Rem.Code Ann. s 154.022(c). The corollary of this provision is that a court may refer the dispute to an ADR procedure if it finds there is no reasonable basis for the objection." 824 S.W.2d at 250.

While the trial court or either party may suggest that referral to ADR is appropriate, referral is not a matter of right. In the sole reported case arising in a probate court, Downey v. Gregory, (App. Houston, 1 Dist.—1988) 757 S.W.2d 524, the Petitioner filed a petition for writ of mandamus requiring the judge of Probate Court No. 2 of Harris County to vacate a final judgment and to refer the case to an alternative dispute resolution procedure. Reviewing the decision of the court under an abuse of discretion standard, the court wrote in upholding the decision of the trial court:

Although the statute contemplates that the court will confer with counsel before making its determination about the referral, it is not bound in every instance to grant an oral hearing before making its determination. In the exercise of its discretion, the trial court is in the best position to determine the status of the case and whether to hold a formal hearing before making a preliminary decision about the referral of the case. The court may consider, among other factors, the nature of the dispute, the complexity of the issues, the number of parties, the extent of past settlement discussions, the postures of the parties, and whether there has been sufficient discovery to permit an accurate case evaluation. The court may also consider the status of the case on its docket and whether a referral would be appropriate at that particular time. Here, the court could have determined from the face of the record that, under the circumstances outlined above, the proposed referral would not benefit the court or the parties, and that the requested referral would tend to delay orderly disposition of the case. 757 S.W.2d at 525-26.

The trial court’s authority to order a party to participate in mediation is confined by the terms of the statute, of course. The trial court in Keene Corp. v. Gardner (App. Dallas—1992) 837 S.W.2d 224,105 rehearing denied, error denied, rehearing of writ of error overruled, the court ordered the parties to mediation on 24 hours notice and imposed sanctions when they failed to comply with the order. In reversing the trial court’s imposition of sanctions, the Dallas Court of Appeals wrote: "Keene requested, and the court denied, ten days to file written objections under the applicable statutory provision. This mediation proceeding was neither voluntary nor in accord with the required statutory procedures. Although the trial court has an interest in expediting the resolution of pending litigation, it cannot force the parties to follow an unreasonable timetable." 837 S.W.2d at 232.111

§154.051. Appointment of Impartial Third Parties of the Texas Civil Practice and Remedies Code provides the basis for mediator appointment by the court:

(a) If a court refers a pending dispute for resolution by an alternative dispute resolution procedure under Section 14.021, the court may appoint an impartial third party to facilitate the procedure.

(b) The court may appoint a third party who is agreed on by the parties if the person qualifies for appointment under this subchapter.

(c) The court may appoint more than one third party under this section.

§154.052. Qualification of Impartial Third Parties of the Texas Civil Practice and Remedies Code provides the required qualifications for mediator appointment by the court:

(a) Except as provided by Subsections (b) and (c), to qualify for an appointment as an impartial third party under this subchapter a person must have completed a minimum of 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court making the appointment.

(b) To qualify for an appointment as an impartial third party under this subchapter in a dispute relating to the parent-child relationship, a person must complete the training required by Subsection (a) and an additional 24 hours of training in the fields of family dynamics, child development, and family law.

(c) In appropriate circumstances, a court may in its discretion appoint a person as an impartial third party who does not qualify under Subsection (a) or (b) if the court bases its appointment on legal or other professional training or experience in particular dispute resolution processes.

Duty of parties in court ordered mediation

"A court cannot force the disputants to peaceably resolve their differences, but it can compel them to sit down with each other. Section 154.021(a) authorizes a trial court on its motion to refer a dispute to an ADR procedure. However, if a party objects, and there is a reasonable basis for the objection, the court may not refer the dispute to an ADR procedure. Tex.Civ.Prac. & Rem.Code Ann. s 154.022(c). The corollary of this provision is that a court may refer the dispute to an ADR procedure if it finds there is no reasonable basis for the objection. A person appointed to facilitate an ADR procedure may not compel the parties to mediate (negotiate) or coerce the parties to enter into a settlement agreement. Tex.Civ.Prac. & Rem.Code Ann. s 154.053(b) (Vernon Supp.1992). A mediator may not impose his or her own judgment on the issues for that of the parties. Tex.Civ.Prac. & Rem.Code Ann. s 154.023(b) (Vernon Supp.1992). Therefore, the policy of section 154.002 is consistent with a scheme where a court refers a dispute to an ADR procedure, requiring the parties to come together in court-ordered ADR procedures, but no one can compel the parties to negotiate or settle a dispute unless they voluntarily and mutually agree to do so." 824 S.W.2d at 250-51.

In Hansen v. Sullivan, 886 S.W.2d 467 (App. 1 Dist. 1994), where a party attended mediation and participated for over three hours, until impasse was declared by mediator, no sanctions were appropriate, even though it was alleged that at the inception of the mediation that party stated his refusal to settle.

Confidentiality of communications

§ 154.053. Standards and Duties of Impartial Third Parties of the Texas Civil Practice and Remedies Code relates to disclosure of communications and information obtained during mediation:

* * *

(b) Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.

(c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.

§ 154.073. Confidentiality of Communications in Dispute Resolution Procedures of the Texas Civil Practice and Remedies Code also relates to disclosure of communications and information obtained during mediation:

(a) Except as provided by Subsections (c) and (d), a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.

(b) Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.

(c) An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.

(d) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.

In Smith v. Smith, N.D.Tex.1994, 154 F.R.D. 661, the court construed Texas law regarding confidentiality of communications during mediation. The plaintiff alleged fraud in the procurement of the settlement agreement resulting from mediation in a prior related state case, and defendants sought to procure the documents in possession of the mediator regarding representation made to rebut reliance by the plaintiff. The mediator moved to quash. On review of the Magistrate Judge’s order quashing the subpoena duces tecum, the court affirmed the order, holding that the section should be interpreted to have the same effect as Tex.R.Civ.Evid. 408, stating:

…§154.073(c) provides that oral communications and written materials that are otherwise admissible or discoverable are not made inadmissible or non-discoverable solely because they have been uttered or disseminated in an alternative dispute resolution proceeding. (footnote omitted) To interpret §154.073(c) [so as to allow defendant the opportunity to introduce probative evidence from the mediation process that could refute the claim] would unjustifiably create an exception to the confidentiality proviso of §154.073(b) that is not expressly set out in the ADR Act and that should not be impliedly recognized in the face of the Act’s pellucid confidentiality requirements.

Defendants have not demonstrated that the Mediator possesses discoverable or admissible evidence derived apart from the mediation conference. 154 F.R.D. at 669.

Noting that defendants did not challenge the application of Texas law, the ADR Act, and the Dallas District Court Mediation Rules, however, the court observed that it "need not therefore decide whether there is a mediator privilege (footnote omitted)[under the Federal Rules of Evidence], and it declines to adopt the magistrate judge’s recognition of such a privilege in today’s case," but that "…federal law governs whether there is a mediator privilege in a case like the present one." 154 F.R.D. at 670. Following five additional pages of discussion in dicta, one is left with the distinct impression that the court did not look favorably on the creation of such a privilege.

Effect of agreement reached

§154.071. Effect of Written Settlement Agreement of the Texas Civil Practice and Remedies Code provides for the enforceability of agreements reached during mediation:

(a) If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.

(b) The court in its discretion may incorporate the terms of the agreement in the court's final decree disposing of the case.

(c) A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree.

Courts have consistently held that written settlement agreements reached as the result of mediation are binding as a contract, and cannot be unilaterally repudiated. Matter of Marriage of Ames (App. 7 Dist. 1993) 860 S.W.2d 590, rehearing overruled. Martin v. Black (App. 14 Dist. 1995) 909 S.W.2d 192, rehearing overruled, error denied; Cary v. Cary (App. 1 Dist. 1995) 894 S.W.2d 111; Clopton v. Mountain Peak Water Supply Corp. (App. 10 Dist. 1995) 911 S.W.2d 525. Although a consent judgment can no longer be entered following repudiation, the agreement itself is enforceable in the same way as any other contract. Cary v. Cary (App. 1 Dist. 1995) 894 S.W.2d 111; Stevens v. Snyder (App. 5 Dist. 1994) 874 S.W.2d 241, error denied.

Extreme caution in entering into a settlement agreement during mediation is justified. A divorce case, Matter of Marriage of Banks (App. 6 Dist. 1994) 887 S.W.2d 160, rehearing overruled, is instructive. As a result of mediation on June 28, 1993, the parties and their attorneys signed a written settlement agreement. Mary Banks filed a notice of repudiation and motion to set aside the agreement on July 9, 1993, and filed an amended notice on July 16, 1993. Kenneth Banks and Acme filed a joint motion for summary judgment on July 12, 1993, seeking specific performance of the settlement agreement. Mary Banks responded that she had given timely notice of her repudiation of the agreement. Alternatively, she alleged that she was the victim of fraud, duress, or undue influence that caused her to execute the agreement. The trial court granted the joint motion for summary judgment on August 3, 1993, and entered a final judgment and decree of divorce in October 1993.

On appeal the court wrote as follows:

Mary Banks alternatively contends that summary judgment was improper because genuine issues of material fact exist concerning fraud, duress, and undue influence exerted on her at the time she executed the agreement. * * * In her affidavit, Mary Banks asserted that she was in a highly emotional state at the time she engaged in the mediation proceedings and signed the agreement; her attorney failed to inform her of the law of reimbursement; she was manipulated into signing the papers and did not feel she had the right to refuse and believed she was without an ally or advocate; she was told that the judge was a "50/50 Judge"; the mediator told her attorney that it would cost each law firm $50,000.00 to go forward with the case and she felt financially threatened by this amount of attorney's fees; and she was induced to enter the agreement by duress or fraud. Mary Banks' statements that she was induced to sign the agreement by fraud and duress are merely legal conclusions and are insufficient to raise a fact issue. See Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984). The failure of her attorney and accountant to inform her about the law of reimbursement is not an act of misconduct attributable to her husband, his attorney, Acme, or its attorney. See King v. Bishop, 879 S.W.2d 222 (Tex.App.--Houston [14th Dist.], 1994, n.w.h.) (upholding settlement agreement over allegations that appellants were coerced into signing agreement by their own attorney). Likewise, the statements of the mediator regarding the estimated amount of legal fees if the case proceeds are not attributable to Kenneth Banks, his attorney, or his business. Understandably, Mary Banks was distressed and under much pressure, for divorce is not an emotionless proceeding. But nowhere in her affidavit does Mary Banks raise a fact issue concerning how her ex-husband or anyone for whom he is responsible exerted duress or undue influence that caused her to enter into an agreement she otherwise would not have made. 887 S.W.2d at 163-164

In applying the traditional focus of these asserted defenses to formation of a contract—the actions of the other party to the agreement—the court was undoubtedly correct. Unfortunately, the very structure of mediation typically precludes application of those affirmative defenses which might otherwise be available to enforcement, in effect precluding review. It is likely that the mediator, not the other party, makes all representations and creates the perception of risk necessary to reach resolution. In the absence of such defenses, it becomes incumbent upon the advocate for the disputant to assure that the client is afforded the highest "quality of justice."

Understanding role of mediator

In order to effectively represent a client, the advocate must understand the roles of the various participants in the mediation process: the mediator, the attorneys, and the disputants, as well as the process itself. There is little consensus regarding the appropriate role of the mediator, other than that the mediator should be "neutral" in the most often used terminology of the mediator community, or "impartial" in the terminology of the Civil Practice and Remedies Code. Typically the impartiality or neutrality of the mediator is defined in terms of not favoring one party over the other, of treating the parties symmetrically, and allowing the parties to reach their own resolution without imposition of the mediator's judgment as to an appropriate outcome.

In understanding the appropriate concerns of an advocate in mediation, however, it is essential to keep foremost in mind that impartiality is not the equivalent of "fairness." In fact, by virtue of neutrality, the mediator is actually proscribed from seeking a "fair" resolution if the disputants are proceeding to resolution on some other basis! "A mediator may not impose his own judgment on the issues for that of the parties." §154.023 (b). Thus even where there are substantial (or possibly overwhelming) power or knowledge differences between the disputants (or their lawyers), it is not within the mediator’s role to in any way mitigate the disparity. While there is a difference of opinion regarding the ethical obligation of the mediator when faced with gross disparities of knowledge or power, ranging from a belief that discontinuance of the mediation is never appropriate so long as the parties are making progress toward resolution to discontinuance of the mediation, where the disparity is not overwhelming there is a consensus that no intervention is appropriate.

The mediator is an advocate for resolution while remaining neutral, thus §154.053 (a) of the Texas Civil Practice and Remedies Code provides in pertinent part that "A person appointed to facilitate an alternative dispute resolution procedure under this subchapter shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement." (emphasis added) Rules and assurances which the mediator may choose to provide are designed to enhance the probability of resolution, although they may also incidentally enhance a misperception, particularly on the part of disputants, that the mediator is interested in fairness. Examples of such rules and assurances include prohibitions on threats of physical violence, agreements to civil communication without interruption, agreement that only the mediator may determine when an impasse has occurred, and assurance that each disputant will have the full opportunity to be heard. Even such rules are enforced solely in the discretion of the mediator; the mediator may choose to modify or discard them if useful in working toward the goal of resolution.

In alignment with the goal of judicial efficiency, most mediators is focus on immediate resolution of the dispute. Mediation in Dallas County (based on anecdotal evidence) has a settlement rate of approximately 80%, and the most effective mediators’ rate is higher still. Court referrals most frequently are directed to mediators who resolve cases, reducing the workloads of the courts.

In working toward the goal of resolution, the mediator's currency is risk—risk as perceived by the disputants. Thus the role of the mediator will include actions and communications intended to enhance the disputants’ perception of risk associated with not reaching a resolution as a result of the mediation; in a similar vein, the mediator will divert attention from risks associated with reaching a resolution during mediation. As noted above, it is not within the purview of the mediator to mitigate disparities of power or knowledge. In fact, there are strong incentives in creating a perception of risk to focus on the weaknesses of the disputant or his or her case, often exacerbating a power or knowledge differential which may be present.

The mediator facilitates communication. In cooperating or resisting the facilitation of communication by the mediator, the advocate must continuously bear in mind that the mediator is seeking to achieve resolution, and is directing the communication between the parties toward that end. A mediator will typically be granted substantial discretion over the timing of disclosure of confidential information revealed by the adverse disputant in caucus, such as material facts and settlement positions, as well as disclosable information. In addition, the mediator will be selective about the sequence and content of information conveyed, in order to guide discussion along lines intended to be productive of resolution.

Each of these aspects of the role of the mediator—neutrality but not fairness, orientation toward immediate resolution, enhanced perception of risk on the part of the disputants (and their counsel), and substantial control over the flow and contents of communications between the disputants—have a strong impact on the role of the advocate in the mediation process.

Role of the advocate

Attorney advocates are trained from the inception of their education (most of us remember with great fondness, I’m sure, our Introduction to Civil Procedure course) to work within a procedural system founded on the notion of fundamental fairness in dealings between the parties, and procedural rules designed to assure that disputants are treated fairly. Among these are rules regarding access to complete, accurate, and verified information; rules regarding application of only reliable information in resolving the dispute presented; substantive rules determined by experience or statute to be just; and procedures for assuring that the rules were applied in the course of the proceeding. Of particular importance in their absence in mediation are the notions that each party should have access to full and accurate information and, in general, the opportunity for review and rehearing after decision has been reached. The potential detrimental effects of the absence of procedural protection is aptly demonstrated by the Banks case excerpt above.

The burden and opportunity of the advocate in mediation is to provide equivalent protection to his or her client in an environment which is extremely stressful and lacking in procedural and substantive safeguards, while taking advantage of the characteristics of mediation which provide an opportunity for an optimal negotiated agreement. Accomplishing the latter requires "thinking outside the box," since there are no rules other than "acting in a manner consistent with requirements of honest dealing with others" "within the bounds of the law."

To do so requires a thorough understanding not only of the roles of the participants, but of the process itself.

Role of disputant

Reduced to essentials, the role of the disputant in the mediation process is to provide facts, make judgments regarding alternatives under discussion, and to determine whether the terms of an agreement are acceptable. As noted above, Rule 1.02 provides that "a lawyer shall abide by a client’s decisions…concerning the objectives and general methods of representation" and "whether to accept an offer of settlement of a matter." In making those decisions, of course, the client is entitled to receive from the lawyer an informed understanding of the his or her legal rights and obligations and their practical implications.

The client can act in a variety of different roles also, however. The disputants may be able to offer settlement options for consideration falling outside of traditional remedies. Depending on the skills and inclinations of the client, the client may be the primary direct presenter of information to be communicated to the mediator and other party during the mediation. On the other hand, following thorough preparation it may be appropriate to severely limit the active role of the client during the mediation where there are substantial power disparities or other relational issues which might inhibit an informed understanding on the part of the client as a result of the process.

Summary of process

The following portions of this outline provide a summary overview of the mediation process.

Inception of process

Although §154.021 provides that either the court or parties may request refer to mediation, most frequently in Dallas County the referral to mediation is on the Court’s own motion. Most Dallas County courts of record, including the probate courts, routinely referral cases to mediation early in the litigation process. The advocate should carefully consider whether mediation (or another ADR process, although I will use the term mediation since it is predominant) at a particular stage of litigation is in the client’s best interest, and in appropriate cases object to the referral order. Regardless of the feelings of counsel and the disputants regarding the usefulness or likelihood of success of mediation, except in rare instances it is unlikely that a referring court will allow disputants to avoid mediation entirely (remember that avoidance of judicial workload is a primary policy goal of mediation). When there are reasonable questions regarding the appropriate timing of mediation, or the particular form of ADR process likely to be most productive, where there is objection courts appear to be amenable to changes from the standing referral schedule. Obviously, if opposing counsel if of a like mind regarding the desired change and an agreed order can be submitted, most state courts will accommodate the agreement.

Timing

Choice of an appropriate time for mediation requires a balancing of certainty regarding the law and facts, the costs (whether economic or personal resulting from non-economic interests) to be incurred in increasing the certainty of information on which a decision regarding resolution will be made, and the type of underlying dispute. While effective utilization of court resources is clearly an impetus for the growth of court referrals, from an advocate’s point of view this factor is irrelevant.

Recall the relevant principles stated in the Preamble to the Rules of Professional conduct: to provide the client with an informed understanding of the client’s legal rights and obligations and explain their practical implications; to zealously assert the client’s position under the rules of the adversary system; to seek a result advantageous to the client. Selection should be made after an informed analysis of the choice which is most likely to obtain a result advantageous to the client. This choice requires identification of the client’s true interests as a participant in the dispute.

The client’s interests may be straight-forward, simple, economic compensation for damage suffered, or obtaining injunctive relief precluding or requiring action by an adverse party. Care should be taken, however, to identify other interests the client may have. Is maintenance of an on-going relationship desirable or essential? Are future business or family relationships at stake? Is a feeling of having reached a fair outcome desirable? Is the client strongly averse to risk or conflict, yielding a high value to what is perceived as a cooperative outcome? Is minimizing at-risk cost of high value to the client? Are there factors outside of the context of the immediate dispute which might affect the client’s evaluation of an advantageous result?

In order to provide the client with an informed understanding of the client’s legal rights and obligations and explain their practical implications, the advocate must have sufficient legal and factual information to evaluate the case. Where facts are complex or not known (as where certain information essential to resolution is only in the possession of third parties or the opposing disputant, perhaps documentary evidence of a transaction or the opinion of experts), it may be difficult or impossible to fulfill this obligation to the client without proceeding well into the litigation process prior to mediation. In such a case, it is incumbent upon the lawyer to insist on the opportunity to develop sufficient information to adequately evaluate the case on the basis of reliable information. Exploring the practical implications of alternatives available requires relating the substance of the evaluation reached, an analysis of the likely recovery though litigation and the expense to obtain the probable recovery, and the impact of each alternative on the true interests of the client.

Each factor, in combination with the true interests of the disputants, may make different timing more or less appropriate. For example, where a continued relationship is essential and the client highly values what is perceived as a cooperative outcome, it may be desirable to attempt to initiate mediation prior to filing suit, even though the reliability of information available for consideration—both legal and factual—will likely be reduced. On the other hand, where a simple economic recovery is desired, and the client is not risk averse, the law is clear, but the factual dispute is complex, it may be preferable to complete or partially complete discovery before entering into mediation, even though an increased cost in expenses and legal fees are incurred.

After analysis, it may appear that some issues in dispute may be susceptible to immediate mediation, and others should be delayed. Although not the custom in Dallas County, most mediators, if informed of a reasoned analysis of the objection and goal sought to be achieved, will work with the disputants to schedule multiple sessions or limit the scope of items to be considered in a particular session. The advocate must remember, however, that under the case law ("within the bounds of the law"), even if an objection is not found reasonable by the court and the mediator is not cooperative, the timing of real participation is within the control of the disputant. One can only be compelled to show up, not negotiate.

Selection of appropriate ADR proceeding

Although the general settlement rate of mediated cases suggests that most cases are susceptible to resolution through mediation, certain characteristics increase the likelihood of an outcome advantageous to the client. Mediation is especially appropriate when the dispute involves substantial non-legal components, or non-legal remedies may be more beneficial to the client than legal remedies. Where the law and facts are clear, but no progress has been made toward settlement due to unrealistic expectations or beliefs by disputants—whether the client or adverse party, mediation can provide a strong forum for reality testing disputant expectations and beliefs.

As noted above, initial lack of sufficient factual information is an important factor in determining the appropriate timing of mediation. Even after full discovery, however, the facts may entirely depend on the jury’s evaluation of the credibility of key witnesses presenting conflicting evidence. Lack of certainty regarding the applicable law may implicate not only timing, but the appropriate procedure, as may the need for an expeditious resolution or other extrinsic factors. Where there is such uncertainty or such factors exist, consideration should be given to creating a combined ADR process designed to solve the problem presented.

Selection of mediator

In each individual case the advocate should evaluate the appropriateness of the mediator in the context of the dispute, the disputants, and the lawyers involved. Basic background criteria often relevant include subject matter expertise (whether legal or factual), interdisciplinary training, cultural factors, and gender. In addition, the style of the mediator will affect the focus of the mediation process, which may be detrimental or advantageous.

Mediator styles have been characterized along two spectrums: evaluative versus facilitative, and narrow versus broad. These spectrums combine in many ways, and often for the best mediators many ways during one mediation. For illustration it is useful to look at the extremes. The evaluative/narrow approach to mediation is closely aligned with the "legal" approach to dispute resolution: focusing strictly on the specific legal issue presented, and enhancing the perception of risk by reflecting to participants—either directly or indirectly—specialized knowledge of the likely outcome based on the law and facts. In contrast the facilitative/broad approach is closely aligned with the therapeutic approach to dispute resolution: focusing not only on the specific problems presented, but on creation through the process of modification of the individual or relational factors which gave rise to the dispute toward the goal of solving problems which might arise in the future.

In considering each factor, focus on what characteristics will prove advantageous to your client. Where it is not possible to obtain the desired combination of characteristics in one mediator, consider co-mediation by mediators with complementary characteristics.

Pre-mediation conference between mediator and lawyers

Prior to beginning the mediation, the lawyer should contact the mediator to discuss procedural arrangements and issues. Particularly where the lawyer has not worked with a particular mediator before, it is important to discuss with the mediator and understand the basic style employed by the mediator, the structure of the actual process which will be employed by the mediator, and the issues presented for resolution.

In Dallas County, the general structure of a brief general session, followed by primary negotiation in successive caucuses has become customary among attorney mediators. Mediators whose orientation is more therapeutic tend to prefer a more extensive use of general sessions. Since particular mediators vary in their approach, it is important to clarify with the mediator her or his intended approach. Obviously, preparing the client for direct communication with the other disputants will be an exercise in futility if the mediator chooses to have no general session, but of great importance if the mediation is to be conducted only in general session.

Settlement authority

Government

Corporation

A copy of the mediator’s Mediation Agreement should be obtained for review, and arrangements should be made for the amount and payment of the mediator’s fee. It frequently assists the mediation process if these administrative details can be taken care of prior to the actual mediation session.

Most importantly, it is at this point in the process that orientation of mediator regarding the client’s version of the dispute and interests in resolution should begin. Most mediators will request a position statement. If requested, provide such a statement immediately; if the mediator does not make such a request, then provide one anyway at the earliest possible time. There is empirical evidence that the party that relates their version of the underlying narrative and interests frames the dispute for the remainder of the process. Thus effective representation at this point in the process can provide substantial advantage to the client. The position statement provided should set out the client’s version of the facts, counsel’s argumentative presentation of the applicable law, and disclose any interests of the client or extrinsic circumstances that are perceived to be relevant to resolution of the dispute (with appropriate instructions regarding non-disclosure, if needed).

Pre-mediation preparation

Traditional legal information and counseling

As a predicate to effective participation in mediation, the lawyer must prepare a full legal analysis of the dispute. To the extent possible, complete evidence should be developed, but it is important to recognize that inadmissible evidence may be relevant to settlement, and will be within the consideration of the disputants in the course of mediation. A realistic evaluation of probable range of outcomes should be made.

Pre-mediation orientation and preparation of the client

To assist the client in effectively participating in the mediation, he or she should be oriented regarding the roles of the participants and the basic structure of the mediation process. If the client has been adequately prepared, nothing unexpected will happen during mediation.

Often the client will have expectations regarding the behavior and mode of communication on the part of the lawyer. It is important that if there are differences between expectations and actuality the client understand the modes to be adopted prior to the mediation, and how the modes of communication adopted by the lawyer fit into the negotiating plan. For example, the client may expect the lawyer to be confrontational, and when the lawyer is friendly and seemingly understanding of the other disputant’s position, may feel betrayed and abandoned if not alerted to the purpose of the lawyer’s adopted style beforehand.

The lawyer must also prepare the client to function effectively in the mediation environment. Questions which should be considered and resolved prior to the mediation include:

Should the client or lawyer take the lead in participation?
What types of information should the lawyer have primary responsibility for conveying, and what type of information with the client have primary responsibility for conveying?
What will be the sequence of presentation?
How will interactions between the mediator and client be structured?

The client should be assured that during the mediation that the client can request a private conference with the lawyer at any time during the mediation to resolve questions which arise, and that you as advocate will facilitate your client getting their say.

The client should be given a general understanding of the structure of the mediation process, and the expected duration of the mediation. Typical component steps of the mediation process which should be discussed include:

The opening statement by mediator, including the expected ground rules for participation;
The opening statement by each party;
The purpose and scope of the general or joint session;
The purpose and scope of caucuses with the mediator; and
Closing and agreement, continuance, or impasse.

Practical pointers like telling client to bring magazines or other work for waiting periods can also minimize the stress created by the process, and facilitate better decision making.

Position development and negotiation process planning

While a complete discussion of planning a negotiation (which is what a mediation is, of course), is well beyond the scope and capacity of this outline, it will be helpful to discuss some of the steps of greatest importance in determining and advocating the client’s position effectively.

As discussed in connection with selection of appropriate timing of mediation, the fundamental step in planning a negotiation is determining the client’s true interest. It is also essential to the extent possible to determine the opposing party’s true interest, which may or may not be his or her stated interest. If the opposing attorney has framed the dispute as a strictly legal problem, and the opposing party’s true interest is in maintaining a working business or family relationship, the true interest of the party will have a significant effect on the negotiation strategy adopted.

Connected with, but not identical to the identification of the true interests of the disputants, is identification of extrinsic constraints on the agreement which may be reached. For example, a disputant may have a strong interest in maintaining a business or family relationship, but not have the economic resources available to meet the stated economic interests of the other party.

Two determinations which must be made in preparation for mediation are the "Best Alternative to a Negotiated Agreement" (BATNA), and the "Worst Alternative to a Negotiated Agreement" (WATNA). The BATNA and WATNA, in conjunction with external constraints, also establish the parameters for an acceptable settlement for the client. Analysis of the BATNA and WATNA of the opposing disputant in conjunction with an evaluation of their external constraints may suggest a probable range of agreement for discussion with the client. A realistic discussion of the best and worst possible outcomes if no agreement is reached will assist in a realistic risk assessment by the client prior to the mediation, and an informed decision regarding settlement alternatives. Again, if the client is properly prepared for mediation, there will be no surprises during the mediation itself.

In considering those factors likely to affect the outcome, it is also essential to determine in consultation with the client what information may be disclosed, what information will remain confidential, and for information to be disclosed the sequence of disclosure.

Finally, in preparing the client for mediation, if the client is to be (as is likely) an active participant, if may be of assistance to assist in development of required communication skills, just as if the client were being prepared to testify at trial.

Tactics during mediation

When the mediation takes place, tactics which are distinctly different than those appropriate at trial are most effective. As noted above, the client must be educated as to the manner in which participation can be most effective.

Communications should be directed to the adverse party, not the mediator. The mediator, by virtue of her or his role in the process, is often misperceived as an adjudicator instead of facilitator. Keep in mind that resolution will be reached only if the adverse party is sold on the solution sought.

Carefully plan the structure and sequence of disclosures and negotiating positions in order to use the mediator effectively to set up momentum and to communicate information to other side in the sequence desired. Intentionally choose what to disclose, what to withhold, and when to change.

Be open to the tactic of item by item agreement, rather than trying to negotiate package agreement. The momentum created by repeated agreement regarding matters which are really uncontested or not of consequence to your client can be of great benefit as the mediation proceeds into negotiation of the difficult issues presented, since such agreements can give the mediator something to work with in bartering a perceived exchange of value, or even a simple perception of give and take.

Where there are substantial power disparities between the parties, use techniques designed to diminish or enhance the effect on the negotiations of those power disparities or adverse relational patterns. Such action is especially important where the client is in the weaker position. Some actions which can effectively disrupt an enhancement of a client’s weakness include interrupting the discourse, assertively reinforcing the client’s rights, and requesting a recess to reorient the client.

It is often useful to have a draft settlement agreement prepared prior to mediation, possibly with blanks for amounts or other negotiable positions, for use during and at the conclusion of the mediation. Such a draft may also serve as a checklist for issues to be resolved.

Conclusion and summary

Client and lawyer preparation for and participation in mediation is a demanding task. It requires a strong sensitivity to the needs and true interests of the client, an assertive advocacy role by the lawyer, and thorough knowledge of the mediation process. Through complete preparation, and awareness of the ethical issues presented by representation in an environment without procedural or substantive protections, however, the lawyer can "zealously pursue clients’ interests within the bounds of the law."

Effective Mediation Advocacy in Probate and Trust Litigation

Walter Wm. Hofheinz

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