Bravery in Mediation

I often encourage counsel at the mediation table to be brave.

Brave advocacy can take many forms in mediation, from counsel backing their own advice when the easier road would be to settle or default to trial - to something a little more counter-intuitive and possibly risky.

I often give two examples of the latter;

First, where counsel strategically signal their vulnerability at the table by giving their own client out-loud adverse advice during a joint session.

'Yeah, Steve's correct I guess - and we will struggle if that's the way the judge approaches liability - and by the way, we are the wrong side the argument. But once (if) we are through, quantum is downhill with a minimum of $10m and on a good day $15m - the risk that we get to try quantum and (as counsel turns back across the table) 'we know you can't live with that for 15 months until trial'.

They know they don't have to prove their position is the correct one - their task is fundamentally different at mediation - instead they are asking themselves 'what can I do to move this case towards settlement' - so they don't waste energy debating the legals or facts to the death - rather, just enough to create doubt and risk for the other side - and if they're really good, by using concepts like mediation aikido.

Second, counsel are sometimes brave in the sense of 'cards on the table' - and here the aim is to build trust and credibility.

I see this only occasionally, especially where one counsel has a weak case and has decided to front-foot-it rather than be found wanting and defend the indefensible.

But great caution is needed - there is an art to this high-wire act and it's best to read this before you try it at home as disclosure of negative information raises thorny questions about advocacy and persuasion because it is, by definition, not helpful to the client’s position;

Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy by Kathryn Stanchi...

Many advocates consider disclosure of information that is unfavorable to the client's case to be inconsistent with the duty of zealous advocacy, while others consider disclosure to be the surer path to victory... The result is a deeper, more nuanced picture of how to deal with adverse information than has previously characterized the debate in the legal context.