In October, I was asked by The Florida Bar Young Lawyers Division, specifically, Young Lawyers Division President Melanie Griffin and my Clearwater colleague Zack Zuroweste, to present to Florida’s young lawyers a lunchtime Webinar on the topic of mediation advocacy and the styles of mediation advocacy that are productive and those that are not. We intentionally individualized and customized the presentation by asking those who registered to send us their questions on the topic in advance of the webinar.
Sandra UpchurchWe were thrilled when we saw the webinar registrations exceed 900 young lawyers and were blown away when we learned that more than 100 of those registered sent us a question.
Our allotted webinar time was only 50 minutes so we could barely make a dent in those inquiries. Instead, I spent a considerable amount of time crafting responses and individually emailing each of those to the young lawyer who posed the question.I was touched when my contacts with many of these young lawyers unexpectedly turned into a running dialogue with my assisting those young lawyers in the areas of developing a personalized mediation style and customized mediation strategy for their case.
The whole process of responding to questions was very cathartic for me and really helped me hone in on what really matters at mediation.We delved into the mediator’s state of mind, the strategy of opening statements, the balance between overpowering and firm, the tricky question of “full authority” and so much more.
I thought I would share some of my interactions with you in an effort to continue the dialog and give you my perspective on the question but also to seek your input and perspective. You see, I want to learn from you too. So, here is the first installation of “Sandy Says.” please let me know if I got it right, if I missed something or if you have something to add.
What is your attitude toward aggressive mediation tactics?
In my role as mediator, I consider it my duty to shield the opposing party and lawyer from that aggression. I like to protect the process so that it can be effective and usually that means taking the animosity and aggression out of the conversation. Typically I take the brunt of the aggression and leave it in that room, or at least I try to. I try to make the sentiment that is being sent to the other room via me considerably more vanilla than how it is phrased to me. I am a filter, if you will, for those tactics. If one party is firm in its position, there are many ways I can convey that message without conveying the aggression along with it.
If I can anticipate aggression during opening comments, I try to prepare the opposing party for that by explaining it is part of the venting and advocacy process. If the aggression comes as a surprise, I conduct a debriefing of sorts with the party on the receiving end to lay the groundwork for productive behavior and conversations moving forward.
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