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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*

By Steven G. MehtaSteve Mehta

This last weekend I attended the State Bar convention in San Diego. I had the pleasure of speaking with one of a person who was apparently criticized in social conversation about spending time on social media as opposed to business. This question is often asked of people not only in the blogging world, but also in the world of social media. Recently, Harvard Business School professor Mikolaj Jan Piskorski has uncovered some interesting answers to the question of how can people can make social media commercially viable.

Piskorski has spent years studying users of online social networks and has identified patterns regarding their use and viability. He has also applied many of the insights to help companies develop strategies for leveraging these various online entities for profit.

Do You Know Someone Who Does…..?

Often, people ask each other the question, “do you know someone who does …?” According to Piskorksi, “online social networks are most useful when they address real failures in the operation of offline networks,”  Specifically, Piskorski explains that “if I am looking for someone who can help me with my start up, I would ask my friends if they know such a person, and if they don’t, I would ask them to inquire with their friends. The problem is that those friends of friends don’t always have an incentive to help, so they won’t work on my behalf. But here is where LinkedIn comes in handy—there I can go and search through the network of my friends of friends and find the person I am looking for.”

There’s a second factor Piskorski does not address: Namely that many people like to consider themselves as the expert in a particular field. When their friends call them on a topic that is tertiary to their field, they feel as if they need to continue to be the expert and that their expertise may be diminished if they don’t know the answer to a particular question. For example, if a person is a specialist in corporate law and is asked about a corporate bankruptcy specialist, that person may feel that they are assumed to know the names of bankruptcy specialists even if that is not truly the case. As such, some people will answer the question of “do you know someone who does…,”  by stating that they may not personally know of somebody but they can probably find somebody within their network. Then oftentimes, they will then research names of people who may be relevant to the inquiry. In that regard, a person’s appearance on the Internet and on social media will be helpful in developing their reputation.

A Picture says a Thousand Words

According to Piskorski’s research, one of the biggest reasons that people investigate social network sites is “pictures.” “People just love to look at pictures,” says Piskorski. “That’s the killer app of all online social networks. Seventy percent of all actions are related to viewing pictures or viewing other people’s profiles.”

Piskorski hypothesizes that people who post pictures of themselves can show they are having fun and are popular without having to boast.  Showing themselves to be popular also suggests that they are a valuable commodity. Just as in the dating world, statistics indicated that people who are attached are more attractive to the opposite sex than people who are not attached. The reason: the mere fact of being attached or popular suggests that other people who know you like you and are confident in you.

Another point that was not addressed by Piskorksi is the fact that the social media allows people to feel as if they know the person before they have ever met. For example, on many occasions I’ve had people who are complete strangers to me make comments about my personal life based upon their observations of what information is in my social media. As a result, these people are more comfortable with me as a mediator. This very thing happened yesterday in a mediation.

When I walked into the mediation and introduced myself, one couple – Mark and Jane —  stated that I looked just as friendly in person as I did in my pictures. In addition, Jane then inquired about my life in England and how I came to the United States. They were able to have a conversation with me as if we had already been social acquaintances. This sense of familiarity helped me develop rapport with the clients without ever being in the room.

MySpace  or is it What Was That Space”

Piskorski also looked at usage patterns of MySpace. According to his research, MySpace probably needs to seek disability benefits.

Although MySpace has 70 million U.S. — a little less than Facebook’s 90 million, it user base is not really growing.  One of the reasons cited by Piskorski is that MySpace is primarily being used by people in smaller communities in the south and central parts of the United States.  “MySpace has a PR problem because its users are in places where they don’t have much contact with people who create news that gets read by others. Other than that, there is really no difference between users of Facebook and MySpace, except they are poorer on MySpace.” Piskorski recently explained in his blog.

Monetizing Social Media

According to Piskorski “To be successful, you need to shift your mindset from social media to social strategy,” he continues. A good social strategy essentially uses the same principles that made online social networks attractive in the first place—by solving social failures in the offline world. Firms should begin to do the same and help people fulfill their social needs online.

Another issue to consider, is whether or not you need to consider monetizing every aspect of social media. There are many examples in advertising where just the mere presence helps the market continue to use a product. For example, Coca-Cola is the best-selling soda brand in the world. Yet it continues to advertise and market.  It is probably very hard for Coca-Cola to monetize any particular one commercial or advertisement. Yet the commercial is a consistent part of its branding message. In my view, social media assists the person, especially professional such as a mediator or attorney, in marketing their brand.

To get a copy of Piskorski’s article, click here.

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