Advice for Lawyers Representing Parties in Mediation

Lawyers representing parties in mediation often write pre-mediation statements to educate the mediator. Advice on drafting these statements is provided in a recent paper by Cardozo School of Law faculty Donna Erez-Navot and Brian Farkas: First Impressions: Drafting Effective Mediation Statements.

Private Caucuses with Mediators

What happens in a mediation caucus? Answers from one mediator's caucuses in a study by Daniel Klerman and Lisa Klerman.

One paragraph from Inside the Caucus: An Empirical Analysis of Mediation from Within:

Parties in Lisa Klerman's mediations were always represented by lawyers. At least a day before the mediation, the lawyers ordinarily gave Ms Klerman “mediation briefs” summarizing the facts and legal issues. Lisa Klerman would typically begin the mediation by discussing the facts and underlying legal issues of the asserted claims in separate private caucuses (meetings) with each side. These communications were confidential in order to encourage the parties to be candid with the mediator. Ms Klerman would explore the strengths and weaknesses of the case with each side in order to set the stage for the parties to adjust their settlement expectations. In some cases, Ms Klerman would recommend an attorney caucus (a meeting between the mediator and the attorneys representing both sides, without their clients) to discuss disputed facts or novel legal arguments. It might be several hours before settlement numbers were discussed. Toward the end of the day, the parties may have stalled in their negotiations. If so, Ms Klerman would frequently make a “mediator's proposal” to settle the case. A mediator's proposal is a settlement proposal that comes from the mediator—not from either side—and is the number that the mediator believes both sides are most likely to accept. Although mediations are sometimes classified as facilitative or evaluative, Ms Klerman uses both approaches, as she thinks is most appropriate for each dispute. Because of her experience as an employment litigator, her evaluation of a case had substantial credibility with lawyers and their clients.

Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior

The Glucose Model of Mediation: Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior is a new article I co-authored with psychology professor Roy Baumeister of Florida State University and two excellent practicing lawyers, Scott Simpson and Daniel Weber of Simpson, McMahan, Glick & Burford

The abstract:

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower remaining, so decision-making and other aspects of self-control are weakened during this depleted state. Restoring willpower (and thus restoring decision-making abilities) can often be achieved by physiological replenishment, such as: ingesting glucose, sleep (and other forms of rest) and breaks from stress.

The physiological bases of willpower combine with the importance of deadlines to offer a compelling explanation for why so many mediations follow a predictable pattern. Most significantly, the physiological bases of willpower go a long way to explaining why many mediations scheduled for a single day begin with stalwart opening positions and end with a signed settlement agreement late in the day. This Article provides a physiological explanation of typical mediation behavior and shows that an awareness of physiology reveals ethical issues with current mediation practice. Part I of this Article discusses the science, specifically the Strength and Glucose Models of Self-Control and their applications across studies of medicine, morality and negotiation. Part II outlines the course of a typical daylong mediation and shows the extent to which common mediation behavior is well-explained by the physiology of willpower when people are operating under deadlines. Part III examines the significance of the Glucose Model of Mediation by identifying ethical issues relating to willpower depletion in mediation.

Sept. 2016: Recent scholarship questions the willpower depletion (ego depletion) theory. Hat Tip to University of Tennessee Law Professor Becky Jacobs for pointing this out.

Writing a Mediation Brief or Position Statement

At mediate.com Dave Ezra provides good advice on writing to persuade mediators and other participants in mediation.  He starts: "In many cases it is the mediation briefs -- the overlooked briefs that are often hastily prepared at the last minute -- that are the most important briefs."

"Remember one thing -- mediators read the concluding sections of mediation briefs.  Some might even read them first, before they look at any other part of the brief."

More on Written Position Statements in Mediation here

Written Position Statements in Mediation

Parties and counsel can write position statements before mediation.  These can be given confidentially to the mediator only, or can be shared with the other side of the dispute.  Tips and pros and cons of various approaches to position statements in mediation are provided here by Cullen and Dykman.