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Bar Association of San Francisco Member Benefits: Publications

One Mediator’s Advice for Attorneys Representing Clients in Mediation

 

By Nicole Gesher, Mediator

 

Life as an attorney teaches some firm and hard-won lessons. Be assertive! Advocate! Never let the other side get away with anything! And of course, when representing a client in mediation, the same rules should apply – right? Well, not always. Too many times I’ve seen highly skilled attorneys run a mediation right into the ground, simply because they are unable to table their agendas long enough to understand what their clients really seek to gain from the alternative dispute resolution process.

It’s not really our fault. Law school and law practice teach us to be zealous, guarding our client’s interests from attack and launching our own offensive at the same time. But at its core, mediation is about collaboration. In order to build an effective agreement, there must be a baseline of trust and respect between the parties (and between their attorneys). This can be difficult in a case that has already entered litigation, but then how much more vital is it for the attorneys to set the collaborative example for their clients? And don’t forget (should the mediation take a turn your client cannot abide) – each side always has the option to walk away from the mediation table – but conversely, all parties should enter the mediation room in a good faith spirit of negotiation.

The best advice I can give an attorney representing a client in mediation is this: have a candid conversation with your client about their goals, determine where they are comfortable with compromise, and ask your client if there are any non-negotiable items. Ask for breaks from the mediation as needed to check in with your client. Let your client speak if they are comfortable with voicing their own concerns. Brief your client on the collaborative nature of mediation, and encourage them to enter into the process in good faith. Fully and honestly brief the mediator about your client’s stance, and indicate what information should remain confidential. And, perhaps most importantly, lead by example.

Mediation is a personal process that has great power to resolve conflict – if it is allowed to be personal.


BASF mediator Nicole Gesher focuses on family mediations, business/corporate disputes, neighborhood issues, dissolution of partnerships, debt allocation, and intellectual property disputes.

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