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By Steven G. Mehta

What Would You Do if….

A lawyer tells you that he has complete control of his client and that she will accept his recommendation. You suspect the client will not be as accommodating, but the attorney insists you don’t need to meet with his client.



Tracy Allen: I won’t mediate with attorneys who don’t allow me to work with them in the presence of the client. I am very careful to honor the atty-client relationship and never come between a client and an atty. I also won’t take a proposal to the other side unless I have a clear approval from atty and the client. If we are working on “I can recommend it to my client and I think my client will agree” then the proposal comes with no assurances.

Gig Kyriacou: It is important for the mediator to have some contact with all of the parties, even if this is limited to introducing yourself and discussing the process. I think this all starts with the trust relationship that you build with the attorneys. If the attorney feels that you will not undermine their authority, they will almost always honor a reasonable request to have access to the client. In those occasions when they are reluctant, you must walk through the things you will be addressing with the client and seek their input and permission as to how to proceed. I have never been denied access to the client when I have followed this approach.


Mike Young: This one is more difficult because you are now getting away from Easy Negotiation Strategy and into Hard Mediation Ethics.  When must a mediator ensure that the actual client (not the mediator’s client — i.e., the lawyer who hires him — but the actual litigant trying to get his or her life back in order) is involved in the process and cognizant of what is going on?  Or when can the mediator simply accept the attorney’s representation that the client is on board?  It’s an easy answer from an academic perspective; I can hear my Mediation Professor’s wise words back at the Hogwart’s School of Mediation:  “It is the individual party’s dispute, and hence the individual party’s resolution.  That party must be part of the process and must make the ultimate decision.”  But this ignores reality where many parties, particularly unsophisticated parties or those not familiar with our legal culture, hand their decision-making responsibilities over to their counsel to negotiate for them the best deal possible.  It makes our lives as mediators much more difficult when we can’t tell whether the individual party is really THERE in mind and spirit, or is there only in body.  I think it is incumbent that we mediators ensure that the individual party knows what is going on at all times, and that if she is surrendering her negotiating and ultimate decision making authority to her counsel, that she is doing so knowingly and voluntarily.  We mediators run a risk when we do this — we can tick off the very counsel who hires us who may think we are meddling in his attorney/client relationship, and such can be a career inhibiting move if done too often.  After all, even mediators need clients.  On the other hand, mediators also run a risk of losing a settlement by blindly following the attorney’s representation of client control when it turns out that the control is not as complete as the attorney expected and the now-disenfranchised client walks out the door.  There is also that ethics thing — allowing the actual disputants to be in charge of their own dispute and resolution.  It is a balancing act to be sure, but one that should be weighted heavily in favor of ensuring client involvement, even at the risk of upsetting an attorney or two.  (Besides, what’s a day in mediation without an upset attorney or two, I mean really.)

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By Steven G. Mehta

Recently I saw some advice for businesses that related to the pyschology of business success.  I thought some of the advice would be helpful in the legal and mediation context.

The following is a brief excerpt from Forbes’ article The Pyschology Behind the Best Business Strategies

2. Let Them Know You’re Working, Even if You’re Just a Website

People don’t mind waiting if they know you’re working hard. Just think about Starbucks and their unnecessarily long and complicated cappuccino maker. It’s not that they couldn’t figure out how to make one faster, it’s that Starbucks knew customers attributed more value to perceived barista effort.

This concept was applied to online products in an Harvard Business School research paper that looked at search features. The Web is unusual in that automating a service actually shields customers from the underlying complexity of the service. But there are steps product managers and designers can take to enhance the perceived value.

The most compelling experiment looked at search time for travel websites.  They found that customers actually prefer websites that require waiting as long as they demonstrate their labor, like a tally or progress bar.  (Think: the way Kayak displays a continually changing list airline sites being searched).  Of course, a pleasant wait experience won’t help you if you’re search results suck.

This advice is very applicable to the mediation and legal setting.  Often, the parties don’t know what you are doing when you are in the other room or the clients don’t know what you are doing in the office.  Indeed, clients often only see a small picture of what you do for them and the magic that you create.   Think of ways to let the clients know that you are working for them.  Here are some suggestions to show your work.

Mediators

– When you are spending a lot of time in one room, let the other side know some of the things that are going on (without revealing confidences)

– When you are waiting for one side to make a decision as to an issue, check in with the other parties and let them know that you are thinking of them.

– Be aware of how time passes.  Time that passed for you as a mediator quickly in room may be agonizingly slow in the other room

Lawyers

– When doing work for a client, give detailed bills reflecting your work.

– Provide monthly updates to the clients

– When writing a letter to opposing counsel, cc: the client

– Before the client calls for an update, you should provide them with an update

– Give relevant (especially lengthy) documents to the client to show them how much time it will take to work.

By Steven G. Mehta

 

After I wrote a post about using the Ipad in mediation, I have had several requests to identify other applications that might be useful for a mediator or attorney.  So today, I thought I would do a brief review of Speedtext HD.

When I first started writing on Speedtext HD, I loved the way that it wrote text.  First, let me say that this app is not a handwriting to typewriting conversion program.  It is simply a handwritten note taking application.

The application requires that you write your text in a large text box.  The box is very easy to write words in and then the words written in the large box automatically get smaller and are placed on the line where your cursor is stopped.  The text that is written on the pad is very realistic and is probably one of the best apps for mirroring your natural handwriting as if on paper.

In addition, you do not have to press any silly buttons or cursors to continue the writing of the text in the box.  After you finish a word or two or three (as much as the box will fill) and you lift your pen/stylus/finger, the program automatically clears the box for new writing and places the original content directly on the page.

When changing pages, or adding a new page it is as simple as pressing the plus button or pressing the > button on the bottom of the page.  You can then switch to a new page or one of the existing pages.  One nice feature is that each additional page will be automatically created with a date stamp in the menu bar on the left and thus you can track when you took the notes.  You can also switch between pages by simply pressing the small thumbnail of any page on the left side.  This feature is nice for an attorney or mediator who might have to switch between notes throughout a hearing or mediation.

You can also create a different notepad for different files.  Thus if you want to make sure all notes regarding the Johnson matter are in the same place and in date order this app is a great notetaking app.

Another nice feature is that you can change the color of the ink to red, green or black and can change the thickness of your pen.  It would be nice if there were more options for both pen size and color.

Where I have found some difficulties is when I am not writing text, but I might need to annotate an existing note.  For example, when I have already written something, and then want to circle the text later, I cannot do so.  If I want to add a star or asterisk next to a point, it is hard to maneuver to do so because you have to move the cursor to the specific spot that you want the asterisk, and then you have to press a checkmark button which then provides you with approximately 30 different types of asterisks.  I find that most are useless such as a heart, smiley face, music icon, shopping icon, calculator icon, and luggage tag icons.  I use the checkmark, and X sign.

Another major limitation is that I cannot email the entire notebook to someone.  I have to email each page seperately which can be a real pain if you have taken many pages of notes.

If it were not for those major limitations, I would probably end up using this program as my primary writing tool.

By Steven G. Mehta

Recently I saw an article that addressed the issue of what effect attorneys have on the mediation process.  Interestingly, the article discussed the claim that many mediators view attorneys as having a negative impact on the medition.  I do not necessarily share that view and believe that it might only apply to consumer mediations as opposed to litigated mediations.

In my view, many attorneys often help the the mediation process by reinforcing the statements made by the mediator.  They remain in the room when the mediator leaves and continue to reinforce the process.  There are some occasions where an attorney may not want to settle the case.  Generally, however, it is not because they simply want to try the case, but instead it is because of a genuine belief that the case is stronger than what is being reflected in the mediation.

In addition, attorneys often help the process by adjusting the expectations before the parties arrive in mediation.  To reflect the other view, however, there are occasions when the attorney has inflated the expectations — but usually it is not the attorney inflating expectations; it is the client who had the extreme expectations from the beginning.

On several occasions, the attorney can act as a buffer for information that the client doesn’t want to hear.  It can allow the attorney to become an extra level of filter for extremely damaging information that might be difficult for the client to understand.

From an anecdotal perspective, attorneys are generally more helpful to the mediation than not.

The following is a summary of the findings of a recent study related to the impact of attorneys in mediation called The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality?  Interestingly, the study finds that the fairness of the process and the usefulness of the mediator is diminished by the attorney’s presence.  I believe that this study may be flawed in that it is not clear whether the attorney and mediator are collaborating as partners or as opponents.  I find that by making the attorney a partner in the negotiation process and asking them to help you with the clients can be more effective in creating a fair process for the client.   Moreover, rather than treating the attorney as an adversary that is not helping the process, I find that making them allies makes the attorneys more collaborative and makes the parties more involved in the process — thus allowing the parties to feel that the process is fair and that the mediation is useful.

Table Two.  Comparison between Mediation without Attorneys and Mediation with Attorneys
Variable Mediation without Attorneys Mediation with Attorneys Significance Level
  • *

    Significant difference at p < 0.01.

Initial conflict level 3.42 3.25 0.271
Settlement rate 68.8% 69.0% 0.986
Time required to reach an agreement 147.8 minutes 177.5 minutes 0.100
Mediator’s usefulness 5.29 4.65 0.005*
Fairness of the process 5.44 5.10 0.155
Satisfaction with the agreement 4.72 4.18 0.175
Confidence in the agreement 5.36 4.98 0.126
Reconciliation of the parties 3.79 2.68 0.002*

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