Counsel, strap on a pair!

For a long while now, my top 10 mediation advocacy tips has encouraged counsel to be brave.

Bravery can take many forms in mediation, from counsel backing their own advice when the easier road would be to settle or indeed 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 on this aspect - and by the way, we are the wrong side of 60/40 odds that he might. But once/if we are through, quantum is downhill with a minimum of $1m and on a good day $1.95m - their risk that we get to try quantum is unacceptable and(as counsel turns back across the table) 'we know you can't live with that for 15 months until trial'.

What on earth are they doing??

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 (for more see The Path Back For The Lost Lawyer) - 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 out 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; Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (a 2008 draft by Kathryn M. Stanchi of Temple University)

"Confronting and defusing negative information is a critical aspect of the art of persuasion. But, disclosure of negative information raises substantial and thorny questions about advocacy and persuasion because it is, by definition, not helpful to the client’s position..." [read more]

Hat tip: the (new) legal writer and Legal Writing Prof Blog