Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter discusses the attorney’s preparation for a mediation and the actual conduct of the mediation, including the following: (1) advising the client about the mediation option, (2) negotiating an agreement to mediate with the other attorney, (3) preparing for the mediation sessions (preparing the case and the client), and (4) representing the client in the mediation sessions (pre-mediation conference, formal mediation sessions, and post sessions).

§ 3.01 Overview of Attorneys’ Roles in Mediation

Practitioner’s Hint: Attorneys should understand how the mediation process works, just as attorneys should understand how any forum works in which attorneys represent clients. In case the mediation does not settle everything, attorneys should be familiar with alternative options for resolving any remaining issues.

Attorneys perform various functions when representing clients in mediations. That representational work is different from what attorneys do when representing clients in settlement conferences, depositions, motions, arbitrations, or judicial trials. For each of those other forums, experienced attorneys know the routine. Many attorneys, however, are less familiar in representing clients in mediation.

Many attorneys, when they appear in mediations, rely on familiar advocacy skills, which, although appropriate for the judicial forum, are often not appropriate for mediations. As a result, many sophisticated and experienced litigators muddle through mediation sessions or engage in behavior that inhibits a resolution. They are learning on the job--out of necessity. Many attorneys went to law school before courses on dispute resolution were offered. The courses which law schools have begun teaching within the last fifteen years have been largely limited to teaching about the mediation process, not how to represent clients in mediations. Continuing legal education programs are only beginning to focus on teaching representational skills.

Given that the technique of mediation is fairly new many practicing lawyers find the mediation environment unfamiliar. Attorneys, however, should possess an understanding of three basic subjects.

First and foremost, attorneys should have knowledge of the theory and practice of negotiations, realizing that mediation is a similar, but not identical process. The very skills in preparing for and participating in a negotiation apply to preparing for and participating in a mediation. For instance, an attorney who practices interest-based negotiations should engage in the same interest-based analysis and strategies when representing a client in the mediation process.