Use Mediation Training to Be a Client-Centered Lawyer From the Experts (Corporate Counsel)

Kathleen A. Bryan
March 06, 2014   
 

As a former litigation lawyer, in-house litigation manager and mediation professor, I’ve come to appreciate how learning basic mediation skills can significantly improve an attorney’s overall legal skills. Like most of my colleagues, I was trained in the adversarial system of justice and believed that to be a “zealous advocate,” my role was to fight for my clients’ rights. After a career at a company where I often saw that legal problems were not the only important issues in a dispute, I now embrace the notion that understanding commercial, emotional and communication issues that typically surround business disputes is the key to resolving legal disputes.

Mediation training is multidisciplinary, borrowing from the fields of psychology, sociology, economics and neuroscience. It provides the perfect roadmap to becoming a more effective and, more important, a client-centered, advocate. Just as the medical profession began shifting its focus in the 1980s to training doctors to become more “patient-centered,” the legal profession should begin to emphasize “soft skills” that focus on a more holistic approach to client interests and needs. These conflict-management skills include listening, communicating, searching for prevention-based solutions, exploring common ground and establishing trust.

Although mediation is now taught in many law schools, this is a relatively new phenomenon. Most lawyers in practice today have not had the benefit of mediation training, nor do they possess the concomitant client-centered skills that would help them become better advocates for their clients.

Listening and Communication Skills

Mediation trainers spend considerable time developing students’ listening and communication skills. Using recent advances in neuroscience to provide deeper insights into behavior, mediation training focuses on learning:

  • How to listen with empathy in order to paraphrase essential content, feelings and interests.
  • How to identify common goals, interests and positive attributes in order to moderate the parties’ tendencies to exaggerate their differences.
  • How to “prime” the parties by using subtle words or phrases to set a positive tone in opening statements.
  • How to productively reframe statements to redirect negative generalizations.
  • How to coach parties to express anger productively.

A mediator has to be laser-focused on the parties, since the most successful mediations occur when the parties are guided in crafting their own solutions. Thus, a good mediator understands the factors that distort behavior and knows how to overcome these to move the parties to a deeper understanding of the issues involved.

Emotional intelligence can be learned—and improved—by applying these mediation techniques. A lawyer-advocate who can lead clients to understand their own—and their opponents’—motivations is more likely to assist clients in reaching effective solutions.

Collaborative Problem-Solving Skills

Mediators are trained in problem-solving interview techniques, in addition to the typical tactics for identifying legally relevant facts and evidence. The study of mediation usually starts with an exploration of interest-based problem solving. Positions are what a party wants, but interests are why a party takes those positions. In stark contrast to the “winner-take-all” or “zero-sum” win-lose adversarial approach to resolution, the interest-based approach, first advocated in 1981 by Roger Fisher and William Ury in “Getting to Yes: Negotiating Agreement Without Giving In” (Penguin Books), demonstrates how to identify interests that the parties may have in common and seeks to fashion a solution that creates value for all parties.

Good mediators understand the benefits of looking for collaborative solutions that enhance everyone’s interests. Mediators are taught how to reconfigure terms through adding, subtracting, substituting and trading issues—all skills that are invaluable for creating better, and potentially longer-lasting, solutions for all parties.

An example often used in training and writing involves two people fighting over an orange. While dividing the orange in half might initially appear to be the most equitable solution, probing for the parties’ interests reveals that one party wants to make orange juice; the other, orange marmalade. Both parties’ interests can therefore be served by giving one the fruit and the other the peel.
At the end of the day, business clients want effective solutions and care little for purely legal issues. A lawyer who is comfortable with a collaborative, problem-solving approach is therefore better able to meet client needs by achieving a superior solution that preserves the relationships so essential in business.

Reading Emotional Undercurrents

Good mediators know that every legal dispute is an emotional dispute in disguise. They must be comfortable with the expression of emotion and be able to uncover the emotional core of a dispute. They are taught to read body language and facial expressions. They learn about recent brain research demonstrating how emotional barriers and cognitive errors affect negotiations. In addition, they must focus on their own conflict-management style and understand the impact of different conflict styles.
We know, for example, that human biases make it difficult for people to see things similarly. Different brain reactions have been recorded, depending upon whether one is given confirming or dis-confirming information. We also know that people tend to undervalue aspects of a situation of which they are relatively ignorant.

These biases even infect perceptions of risk. We know that parties make risk-averse choices when facing a gain, but when facing a loss, they tend to make risk-seeking choices; that is, they prefer riskier outcomes to sure losses. Learning key aspects of human behavior that affect negotiation and perceptions of winning or losing are critical elements of dispute resolution training.

Most important, a mediator must know how to build trust among parties in conflict. Mediators learn that positional or adversarial bargaining creates reactive and impulsive behavior and escalation. They are taught how to overcome emotional barriers, recognize signs of reactivity, and acknowledge feelings and dilemmas. Lawyers who develop these interpersonal skills are in a much better position to build client trust and understanding.

Improved Decision-Making

Mediators also study social science research about decision-making. There is, for example, emerging empirical research on judicial decision-making that reveals judges are as susceptible as the rest of us to the human brain’s tendency to make automatic snap judgments that can lead to erroneous decisions. Recent “decision error” research by Randall L. Kiser comparing trial results with rejected pretrial settlement offers reveals that 61 percent of plaintiffs and 21 to 24 percent of defendants obtained an award at trial that was equal to or lower than what they could have achieved by accepting their opponent’s pretrial settlement proposal. Cases in which the parties were represented by attorney-mediators were associated with a reduced decision-error rate, strongly suggesting that dispute resolution training can improve advocates’ decision-making skills (Randall L. Kiser, “Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients” [2010]).

The real essence of mediation training revolves around negotiation skills and settlement dynamics. Mediators learn about the “best alternative to a negotiated agreement” (BATNA) as their stock in trade. A thorough BATNA evaluation involves assessing the best probable outcomes that can be achieved if the parties fail to reach agreement. This kind of preparatory strategic focus on negotiation and settlement provides insights that may otherwise be left until too late in the game. Research has shown that focusing on the best possible outcome for clients, which generally means settlement rather than trial, yields higher-quality results at an earlier point in the dispute. Thus, the most cost-effective approach to dispute management is early focus on settlement dynamics. Clients increasingly prefer lawyers skilled in these early case-assessment techniques, and who understand alternative dispute resolution settlement options.

What’s In It for You?

Business leaders don’t care about the best legal result—they want the best result for their business. Learning interpersonal conflict-management skills through mediation training may be the single best investment lawyers can make in improving their legal practice. You can become more client-centered—and therefore a true partner with your clients—if you learn and practice these invaluable “soft skills.”

Kathleen A. Bryan is the president and CEO of The International Center for Conflict Prevention and Resolution (CPR Institute) in New York City. She is an adjunct professor at Cardozo Law School and Fordham University School of Law. Prior to taking the helm at CPR in 2006, she was the head of worldwide litigation for Motorola Inc., and in private practice as a litigation lawyer in Boston and Phoenix.

Reprinted with permission from the March 6, 2014 edition of the Corporate Counsel © 2012 ALM media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com