The Closer

A Mediation Newsletter April 2012

Staying Above the Fray
by James Rainwater

By far, the most productive settlement conferences I have mediated have been ones where the attorneys exhibited a constant presence of professionalism. By this, I do not mean to imply that a rigid barrister persona is necessary. However, I do believe that mediation is a time for attorneys to display their best skills at collaboration.

While the formality of the courtroom is not a requirement of mediation, we can take away some important traits: Civility, courteousness, and respect. No one enjoys being belittled, ignored, or chastised. And mediation is not the venue for this behavior. Attorneys need to exhibit those qualities that clients pay for: Calmness, deliberation, and critical logic.

In mediation, it is the attorneys who embody these qualities who most often reach a settlement - even in highly-charged and confrontational conferences. By maintaining a focus on the dispute, attorneys can guide their clients into more serene waters. By engaging in a heated shouting match with the opposing party-client, the attorney has lost any semblance of professionalism. I have seen this… and much worse.

As professionals, we need to constantly remember why we are there - to solve problems. While some zeal is important in advocating for a client, it should not overcome and control one's actions. Taking things personally can help add to our efforts in pursuing justice for another person, but it must be tempered with analytical thinking.

I am not proposing that we all knuckle-under and crawl our way through a settlement conference. I am suggesting that sometimes we need to rein-in our assertiveness and avoid the onset of an arm-wrestling match. Clients need to be reassured that mediation is a collaborative and productive process, and mediating attorneys who demonstrate that ideal is an excellent way to reinforce it.

Rainwater Law