John Lande
This article has been republished and adapted with permission. The original publication can be located within the University of Missouri School of Law Journal.

How Can You Turn Adversarial Attorneys into Quasi-Mediators?, my Theory Meets Practice column in CPR’s Alternatives magazine, summarizes a discussion with members of the Association of Attorney-Mediators. It builds on Creating Educational Value by Teaching Law Students to be Quasi-Mediators.

Attorneys acting as quasi-mediators use mediation techniques but they aren’t neutral. These attorneys routinely help their clients realistically understand the their cases. The attorneys promote their clients’ interests by enlisting the mediators’ help when needed and encouraging the other side to adjust their positions. The attorneys prefer to be cooperative whenever appropriate. They tailor their actions based on their clients’ preferences and the other side’s approach. If the other side is acting badly, these attorneys vigorously advocate their clients’ interests. Another term for quasi-mediators is “good lawyers.”

I asked the attorney-mediators about attorneys who behaved cooperatively and adversarially in their cases. The Alternatives article combines their responses with suggestions from the Real Practice Systems Project Menu of Mediation Checklists.

Here’s a summary of the Alternatives article. Mediators can promote cooperation by asking attorneys about the following issues during conversations before mediation sessions:

• Causes of underlying conflict.
• Client’s interests, goals, and priorities.
• Possible options for settlement in addition to lump-sum payments.
• Special needs of any participant.
• Personalities and dynamics of participants.
• Expectations about how participants might act in mediation session.
• “Hot buttons” that might cause counterproductive reactions.
• Non-negotiable issues.
• Negotiable issues.
• Potential barriers to agreement.
• Actions needed before mediation session to make mediation productive.
• How mediator can be helpful during mediation session.

Mediators can help attorneys make realistic estimates of possible court outcomes by asking about:

• Potential factual discoveries that would be helpful.
• Potential factual discoveries that would be harmful.
• Assumptions they are very confident about.
• Assumptions they are not very confident about.
• What would change their assumptions about the possible court outcome.
• What might change the other party’s assumptions about the possible court outcome.
• How they would persuade a skeptical judge or jury about arguable issues.
• Their clients’ risk tolerance for unfavorable outcomes.

Here’s a list of dos and don’ts for attorneys to act as quasi-mediators:

Do

• Listen carefully and respectfully to everyone.
• Treat each client’s case individually, not as a routine case like others.
• Act as a counselor to your clients as well as an advocate.
• Learn and respect your clients’ interests, goals, and priorities, including intangible interests.
• Consider possible options for settlement in addition to lump-sum payments.
• Develop a good working relationship with counterpart attorneys.
• Consider the other side’s perspective.
• Develop a realistic perspective of your case. 
• Candidly discuss the strengths and weaknesses of your case with your client.
• Develop options and take positions to advance your clients’ interests that lead to agreements acceptable to the other side whenever appropriate.
• If you mediate, talk privately with mediators before mediation sessions.

Don’t

• Develop a default approach of treating everyone as an adversary.
• Give your clients unrealistically optimistic evaluations of their cases.
• Use an adversarial approach to impress your clients.
• Take unreasonable positions or encourage your clients to do so.
• Act based on negative feelings about a counterpart attorney or party.
• Make unwarranted accusations against the other side.