The Legal Assistant's Role in Mediation: Some of the Possibilities

Introduction

Mediation

The use of mediation permits a third party neutral to create a "safe" environment in which disputants and their counsel can convene to negotiate and seek settlement of all issues. The mediator, unlike the judge or arbitrator, does not substitute his or her judgment for the judgment of the parties. The mediator facilitates the process in which communication, creativity, evaluation, and collaboration are enhanced to maximize the probability of meaningful and lasting agreement.

An Overview of the Process

• Selecting the mediator;
• Preparing the pre-mediation submission;
• Preparing the client for mediation;
• The mediation's joint session, including but not necessarily limited to:
  • the mediator's introduction;
  • the lawyers' opening statements;
  • the parties' statements; and the identification of issues;
• The separate (private) caucuses, including but not limited to:
  • evaluating the parties' positions and interests;
  • and generating options;
• Possible additional joint sessions (and private caucuses);
• Possible lawyer caucus; and
• Drafting the agreement.

Selecting the Mediator

1. Name;
2. Address;
3. Contact numbers (including e-mail);
4. Biographical summary;
5. Full time or part-time practice;
6. Mediation training;
7. General mediation experience; Specific mediation experience by type of case; Mediation experience with your attorney/firm;
8. Success: number of cases in which all issues were settled; number of cases in which some but not all issues were settled; number of cases in which meaningful progress was made but no settlement was reached; number of cases in which the result was unsatisfactory;
9. Largest number of parties involved in any given mediation;
10. Calendar availability;
11. Does the mediator provide facilities, and are they appropriate?;
12. Fee options;
13. Post mediation follow-up: Any required?; Would any have been helpful?; If so, did any occur?;
14. Conflicts: real, potential, or perceived?
15. Style: facilitative / evaluative / predictor / a combination, etc.;
16. Availability to co-mediate with other professionals;
17. Use of experts;
18. Etc.

I have been asked from time to time where one goes to find the right mediator. Most often the answer is other legal assistants, attorneys, and/or mediators. Also, one can access information from most district court ADR coordinators' offices; local, state and national mediator associations (ie. Texas Association of Mediators, Dallas; Academy of Attorney-Mediators, Dallas; Society of Professionals in Dispute Resolution, Washington, D.C.,etc.); mediation centers on University campuses (ie. Center for Public Policy Dispute Resolution, University of Texas; A.A. White Dispute Resolution Institute, University of Houston); the ADR Sections of the local, state, and national Bar associations; and, yes, the yellow pages of the telephone directory under "mediation".

Of course, the legal assistant plays a valuable role in the first contact with potential mediators. Whether it be to obtain information about the mediator or to discuss availability, the legal assistant saves attorneys untold hours in arranging the logistics.

Now, let us look at the possible roles of the legal assistant in preparing a client for mediation.

Preparing a Client for Mediation

1. Explain to the client what mediation is, as well as what it is not (ie. arbitration, etc.);
2. Identify the goals and benefits of mediation;
3. Explain why the mediation is taking place (ie. by order or rule, advice of counsel, agreement of the parties, etc.);
4. Describe the process, including each of its stages;
5. Discuss the advantages and challenges associated with confidentiality throughout the process;
6. Provide details about the logistics;
7. Discuss the mediator's role, and be certain to advise the client that the mediator may ask the client questions;
8. Familiarize the client with the mediator who has been selected;
9. Provide a copy of the pre-mediation submission;
10. Determine whether it makes good sense to visit with the mediator privately to discuss specific "hills" one might have to climb in the course of the mediation;
11. Discuss the attorney's role at the mediation and distinguish the role the attorney will play at the mediation from the role the attorney will play in court or before the agency;
12. Explain that the client may actively participate; (in most circumstances, encourage the client to actively participate);
13. Anticipate and discuss with the client initial unrealistic negotiating positions;
14. Anticipate and discuss sensitive issues and formulate strategies to deal with such issues;
15. Objectively evaluate the strengths and weaknesses of the case with the client;
16. Encourage the client to be patient, flexible, open-minded, polite, and respectful of the process;
17. Prepare the client for impasses, and advise of the need and appropriate strategies to work through impasses;
18. Discuss how to be certain that all parties have the requisite authority available at the mediation to reach settlement;
19. Prepare the client for the result, whether full, partial, or no settlement is reached; and
20. Discuss "next steps" depending on the outcome.

Of the twenty steps listed, some should be performed exclusively by the attorney. Others could be performed primarily by the legal assistant. Any decision as to which of the above specific functions the legal assistant should be responsible and accountable for should result from a joint discussion among the attorney, the client, and the legal assistant. Likewise, many (if not all) of the functions listed above should be billable to the client. Once again, any decision as to what is and is not billable should be the result of open discussions between the attorney and the client.

A Few Pointers When Scheduling Mediations

• the full style of the case, (as it appears on the court or agency document if the matter is court or agency-annexed);
• the names, addresses, and contact numbers for all attorneys (and any parties who are pro se);
• the names of all parties (for conflicts check purposes), and how the parties are aligned (for logistical purposes);
• the names of any insurance carriers which may be involved;
• the nature of the case;
• whether there is a trial or hearing setting; and
• the status of the negotiations between the parties.

Most mediators and their coordinators are particularly appreciative when you are open and flexible in scheduling. While many mediators and their coordinators will hold two or three dates for a couple of days, nothing is more irritating than to be holding dates that are no longer needed and not to know about it.

Finally, legal assistants should resist the gravitational pull to become entangled in the head-butting which often results in determining "the shape of the mediation table", notwithstanding the highly emotional nature of some mediations, and the attorneys and parties who participate in them. A calm, steady account of the "facts" will allow the mediator and his/her coordinator to assist in the resolution of these preliminary obstacles.

Conclusion

For those who are new to ADR, and to mediation in particular, there is no better way to serve your attorney and his/her clients than by participating in training and observing the process in action whenever possible. There is rarely any substitute for first-hand experience.

Finally, most legal assistants can only begin to envision the opportunities which await them as mediation expands throughout the public and private sectors. These opportunities may transcend attorney support to the arenas of mediation coordination, training, and organizational systems design. These arenas, along with more detailed discussions of specific tasks and ethical considerations, should be the topics of future articles.

TEXAS PARALEGAL JOURNAL
Spring 1997
©1997 Legal Assistants Division, State Bar of Texas

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