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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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By Steven G. MehtaSteve Mehta

A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct.  Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them.  Recent research sheds light on this issue.

According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.

Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.

“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”

The researchers conducted several versions of a mock trial involving a lawsuit against an auditor whose actions had negative consequences on a client. The researchers examined whether a defendant making an apology, offering a justification, utilizing both techniques or remaining silent led to the most favorable verdicts.

“We know victims often respond favorably to an apology, but our findings suggest that even unharmed jurors react in a similar manner,” says Cornell. “Offering an apology though is not synonymous with admitting guilt.”

The majority of states have some form of ‘apology law’ that prevents an apology from being used against a defendant as evidence in court in some setting or other. According to the researchers these laws encourage the use of apologies when disputes arise.

“Defense attorneys must consider several factors before having their client testify in court,” says Warne. “However, we believe that most innocent parties could benefit from utilizing the apology and justification strategies when legal conflicts arise.”

In my experience, apologies – and especially heartfelt apologies – can have a significant impact on resolving many emotional conflicts.  Given that the mediation setting is confidential, it is very easy for people to make an apology during mediation because such statements will remain confidential for legal purposes but have the desired effect of helping to reduce tension and deescalate a conflict.

Given that there is mounting research as to the effectiveness of these types of apologies as well as the financial benefits, an apology should be something to consider in litigation context.

See also, financial impact of an apology

George Mason University (2009, August 25). Saying ‘I’m Sorry’ Influences Jurors. ScienceDaily. Retrieved September 27, 2009, from http://www.sciencedaily.com /releases/2009/08/090824141049.htm

By Steven G. MehtaSteve Mehta

In mediations, clients are faced with important decisions throughout the day  — what move to make, what response to have, and what to have as the bottom line?  Many times, you will see a person who can normally make good decisions but is paralyzed in the mediation.  Why?  Well recent research demonstrates what we may have already believed: that cognitive stress can substantially affect a logical approach to decision making.

Psychologists Jane Raymond and Jennifer L. O’Brien of Bangor University in the United Kingdom wanted to investigate how cognitive stress affects rational decision making. Their findings were reported in the current issue of Psychological Science, a journal of the Association for Psychological Science.  The study reveals that distractions and other stressors significantly impact decision making. When volunteers were not distracted or under stress, they tended to excel at making decisions that had been highly predictive of either winning or losing outcomes. However, when they were distracted, they were not as effective in making appropriate decisions.

authors note that when we are stressed and need to make a decision, we are “more likely to bear in mind things that have been rewarding and to overlook information predicting negative outcomes.” In other words, these findings indicate that irrational biases, which favor previous rewards, may guide our behavior during times of stress.

The implication is that in mediation people might revert to decision making that they previously found to be effective rather than based upon fact or information.  Further as noted above the decision is biased towards favorable outcomes.  As such, it is important to make sure that the decision you are helping the party make be considered as positive as possible in order to factor in the bias of decision making when under stress.

Adapted from materials provided by Association for Psychological Science.

Association for Psychological Science (2009, September 16). Under Pressure: The Impact Of Stress On Decision Making.

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