By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 9:  “Opposing Counsel - Your Ally in Mediation.”

The attorneys in mediation share one goal:  getting to an acceptable settlement.  A lot of factors influence whether that occurs.  Have you ever asked yourself this question:  “Who around the mediation table has the greatest power to influence the other party to accept a settlement most favorable to my client?”  It generally is not the mediator.  Mediators surely have some influence, but opposing counsel is the person that you most need to make the deal.   He may even be the de facto decision-maker, and virtually always has the power to stop progress toward settlement.  If opposing counsel is not willing to make the deal, it will not happen.

If this is true, why not make the attorney across the table your professional ally, to the greatest extent possible?  Now, I can hear the skeptics objecting:  “She is not my ally. She is here to make the worst deal for my client, not the best.”  True, to a degree.  Attorneys in mediation certainly have the ethical duty to zealously advocate.  Within that context, we all see that there is a dramatic range in the degree of professional cooperation among our colleagues.  The best negotiators support the opponent in the difficult task of seeking resolution, even helping the other party to see a “win” in the outcome, while creating a favorable settlement for their own client.

How can you make opposing counsel an ally in the process, while skillfully working toward a good settlement?  First, distinguish between the “process,” and the final settlement terms.  Prepare carefully for mediation, with a negotiation strategy and a target for settlement.  Then use the process in a way that supports your opponent, while you execute your plan for the negotiation.  You need not fear that a cooperative approach will undermine your effort to get a good result.  Nobody can make you say “yes” to a bad deal. 

One simple way to make an ally in the process is to acknowledge, in the presence of the other client, the excellent work done by that attorney.  I have heard attorneys say:  “The excellent job that you did with that witness deposition really changed my view of the case.”  Or, “This case would not be much in the hands of an average attorney.  You have done a great job.”  Or, “Ms. Jones, your attorney knows that I regard her as one of the best in the field.”  Be real about such comments, but do not be afraid of them.  You have just helped opposing counsel do their job with the client, and made them feel good.  You have also given them good reason to reciprocate.  It costs you nothing.

Another way to support your ally in mediation is to provide useful information on a disputed issue:  share a witness statement; give a preview of expert analysis; tell them how you will overcome an obstacle in proof.  When the tough issues come up, some attorneys can not resist a little jab:  “How could you not understand this? It is all over the records.”  Criticizing another attorney in front of the client or mediator should always be avoided, and doing so privately will not help your cause.  Do not needlessly alienate the person who you will soon need to be pulling for the deal that you want.  A little graciousness while educating goes a long way.  

When a cooperative tone is set, you may ask the opponent for help with your issues.  Perhaps a corporate client needs certain business concerns addressed that the other side can help with.  An insurance company may need clarification about the scope of covered losses.  A grieving family may need to hear that something will be done (besides money) to reduce future risks of the kind which caused a death.  These things are easily accomplished, between cooperative professionals.

Finally, the tone set while nearing settlement is critical.   Most settlements can be framed as either a relative win or a relative loss for either side.  Comments conveyed to (or in the presence of) the other party which let them know that they have “won,” have convinced you of their sincerity or credibility, of the significance of their loss (to plaintiffs), or of the reasonableness of there approach (to defendants), can make the last move much easier for the other party to swallow.  The attorney who must gloat over the opponent “rolling over” will have that experience much less frequently, than the gracious lawyer, who makes compromise as comfortable as possible.

Strive mightily for success, but be a professional ally with other counsel in the process of mediation. 

Next month, the final article in this series, will consider:

“The Future of Mediation.”

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