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Originally from Alternatives to the High Cost of Litigation

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These days, attorneys regularly represent clients in mediation. Attorneys are not potted plants in this complex process, and they need guidance about how to best serve their clients.

Dwight Golann captured the nature of mediation representation in his book, Sharing A Mediator’s Power: Effective Advocacy in Settlement (American Bar Association 2013). He describes how savvy attorneys recognize the potential to “share”–and actually take advantage of–mediators’ powers:

Advocates can use mediation to pursue either competitive or cooperative strategies. An advocate can make an extreme opening offer, for instance, knowing the neutral will work to “scrape the defendant off the ceiling.” Or a defendant can ask a mediator to explore creative options, such as repairing a ruptured relationship. Lawyers can also pursue a dual strategy, making money offers while asking the neutral to explore business issues.