By Michael S. Leib
I have observed advocates and mediators who are the epitome of professionals. From them I’ve learned what professionalism looks like in the practice of ADR, whether as advocates or mediators. This article is about what ADR participants can do to enhance their professionalism. In writing this article, I’m drawing on my passion for promoting legal professionalism and civility.
—————
Legal professionalism and civility
Legal professionalism and civility are not the same thing. Civility is a subset of legal professionalism. We know what civility is intuitively. It is treating everyone involved in the justice system with respect. The best view of civility is what almost everyone immediately accepts-the Golden Rule. As applied to lawyers, it is treating others as we want others to treat us. While lawyers are advocating vigorously for clients, it is helpful to remember that lawyers do not litigate without constraint.
The “Professionalism Principles for Lawyers and Judges,” Michigan Supreme Court Administrative Order 2020-23, contains a list of 12 principles that describe professional behavior. The order also provides commentary to further explain what the principles look like in practice. To emphasize the Court’s role in promoting professionalism and civility, the 2020 order is directed to both lawyers and judges — it is a partnership. And, because the principles apply specifically to ADR, the participants in mediation are subject to the principles. The concept of legal professionalism is not new, but we could use a reminder.
—————
What is legal professionalism
Legal professionalism is broader than we might think.
It concerns the lawyer’s role in the justice system, including the promotion and defense of the rule of law. An in-depth discussion of the lawyer’s role in the justice system and defense of the rule of law is beyond the scope of this article.1 However, it bears repeating that lawyers are the guardians of the justice system.
What I am talking about here is more about dedication to doing what is necessary to demonstrate the highest standards of our profession, not the bare minimum. The Michigan Rules of Professional Conduct provide the floor for lawyer conduct. Many aspects of the rule are also found in the “Professionalism Principles for Lawyers and Judges.” For example, the requirement of respect for those involved in the “legal process” may be found in Michigan Rules of Professional Conduct 6.5. The requirement of competence is spelled out in MRPC 1.1, which addresses legal knowledge and skill as well as thoroughness and preparation (the theme of this article).
Because I view professionalism as representing the best of us, that is the area I’ll focus on in mediation practice.
—————
Legal professionalism and mediation
Just as professionalism is a partnership between judges and lawyers, mediation is a partnership between advocates and mediators. It requires the advocates to do their job together with the mediators doing their job. The focus of this article is on the advocates.
Frankly, some lawyers who participate in mediation don’t do their job as well as they could. To be professional, in my view, they should advance the following principles in ADR.
—————
Understand the process
Advocates should consider the process they are about to participate in.
Yes, it is a negotiation. Does the lawyer understand that the mediation process, for example, starts before the mediation session? Has the advocate reviewed the applicable mediation court rules? Has the advocate considered that the nature of the opening offers is not to be trivially considered and that negotiating without much thought is counterproductive? Has the advocate considered how the mediator might be helpful during the mediation?
—————
Preparation
The ADR professional should begin the mediation process well before the mediation and before a discussion with the mediator. It begins with a thorough understanding of the client’s case, starting with its strengths and weaknesses, the opposition’s strengths and weaknesses, and faces the tough issues head on. It does their client no good for counsel to minimize weaknesses of a client position, hoping for a magical cure to resolve them. Assessing the strengths and weaknesses of each side is a critical starting point of risk analysis.
It always seemed to me that the best preparation for the litigation of a case, and preparation for a meaningful mediation, begins at the end.
• Does the lawyer know what a trial of the case might look like, the actual evidence that will be admissible, the list of witnesses, and who might testify?
• Is there a significant motion for dismissal likely?
• Has the lawyer prepared an estimate of fees and expenses to take the case to and through trial?
• Has the lawyer considered whether they have obtained enough information to engage in a meaningful mediation?
• What information may yet be necessary?
• And what additional information will be needed to try the case?
• Has the lawyer met with the client and discussed a risk analysis so that the client understands both the monetary and non-monetary burden and risks of taking a case to trial?
All of these actions help prepare both the client and advocate to participate in a meaningful mediation. Sometimes, counsel for a party wants the mediator to shoulder the burden of discussing the weaknesses with their client in caucus. Mediators should not be afraid to ask counsel how the mediator can assist the party’s representatives. Often, they will ask the mediator to provide their client with a “reality check.”
Mediators know that many advocates come to mediation without any obvious signs of, or with limited, preparation. That means the mediator must spend time working with the parties to make sure they and their attorney are prepared to meaningfully negotiate.
• I have found that an important starting point with lawyers and their clients is making sure that they have fully considered the information they possess and the information they need but don’t yet have and how to get it. It is common to adjourn a mediation so that the parties can exchange additional information voluntarily.
• Also, it is important for the mediator to be prepared to adjourn a mediation to permit the parties to obtain the information they think they need. The last thing any mediator wants is for a settlement to be second guessed because available and important information was not provided to a negotiating party.
I have often asked parties whether they feel they have sufficient information to meaningfully negotiate. Invariably the answer is yes. But, a few hours later, a party realizes it needs more information about a particular issue or issues.
—————
The mediation statement
I have found that most mediators require a mediation statement in advance of a mediation. The statement is intended to prepare the mediator and inform the adversary and clients, of factual, legal, and damage positions.
I encourage the advocates to address the factual and legal positions and not put a damage demand in their statements. Of course, there should be an explanation of the loss by the plaintiff and damages caused by the loss.
There are a few other significant considerations of a mediation statement. The statements are often a window into the professionalism of the advocate. As a mediator, I am looking for the use of adjectives and adverbs. I have learned over time that the best professionals use adjectives and adverbs the least often. The strength of the statements depends on the facts and law presented, not on an argumentative tone.
The statements do not have to be long and most mediators will accept versions of motions to dismiss so the parties do not have to reinvent the wheel.
However, the statements that contain unnecessary and argumentative claims tell me that the mediation itself will require some discussion designed to focus on the merits of the dispute. And keep your exhibits to a concise minimum unless there is an important area of dispute that needs to be highlighted. Just attaching a 250 page transcript is a waste of time and money. If you have concerns about an important factual allegation, by all means raise it by attaching the relevant and necessary portions of the exhibit. But if there is no dispute concerning the existence of a fact, you don’t need to attach a copy of anything because the other side does not dispute it.
Mediators want the mediation process to be a civil discussion as best as possible. We all recognize that even the business cases we see can be emotional for the parties. Yet, yelling and screaming at the other side, in the statements, and in the actual negotiations are not helpful unless the point of the advocate is to demonstrate that the client is very emotional and the emotion will affect the negotiations. However, I prefer that the yelling and screaming be made in my presence and not joint sessions. I can relate to the adversary the intensity of a party’s emotions.
—————
Concession strategy
Those advocates who have carefully considered an opening offer may not have thought further about the possible progress of negotiations.
It is valuable to have, again, considered the end point, i.e. the “bottom line” and how to get there. Mediators want to see progress in negotiations and help the parties exchange offers and counteroffers. However, there is a significant principle that the most professional advocates include in their style. As one of our great PREMi mediators, Paul Monicatti, describes it, the mediation process is better positioned to reach a settlement when the parties are engaged in “principled negotiations.” That is, the offers and counteroffers are not randomly or thoughtlessly selected and the reason for a new offer or counteroffer is logically explained. We know from experience that an offer or counteroffer that has no basis in reality will not be well received. And, if a few are made by a party, the chances of a meaningful mediation are reduced.
The point here is that advocates should be preparing for a mediation by including a discussion with the client about how to move through the mediation negotiations.
—————
Conclusion
Having had the good fortune to observe wonderful, professional advocates and mediators, the following hard work before a mediation pays dividends:
1. Know the strengths and weaknesses of each side’s case and discuss them with the client—especially the weaknesses.
2. Think carefully about how the case will be tried including consideration of evidence and witnesses.
3. Determine whether there is enough information to have a meaningful mediation. If not, work to get the information.
4. Make the mediation statement straightforward and logical, describing the facts, law, and damages suffered or not suffered. Avoid flame throwing language.
5. Make sure that there has been consideration of, and discussion with the client of both the opening offer and the concession strategy.
6. Follow the Golden Rule in mediation statements and the negotiation process.
Footnote:
1See Pappas, ‘Professionalism and civility: You can’t have one without the other,’ 102 Mich B J 40-42 (June 2023)
—————
Michael S. Leib is a mediator and arbitrator with Leib ADR LLC in Bloomfield Hills, Michigan and specializes in the mediation and arbitration of complex business disputes including bankruptcy disputes, real estate disputes, professional liability disputes, employment disputes, and participated on the Alternative Dispute Resolution Council of the State Bar of Michigan, as well as on the Debtor Creditor Committee of the Business Law Section. He is the chair of the State Bar of Michigan Special Committee on Professionalism and Civility. Mr. Leib is on the Commercial Panel of the American Arbitration Association and member of PREMi, an organization of attorney dispute resolution experts who have numerous years of experience in both conflict resolution processes and subject matter knowledge in many industries and disciplines. Mr. Leib is the co-author, with the Honorable Paul R. Hage, of “Michigan Dramatically Expands Existing Receivership Law with the Enactment of the Receivership Act”, 41 MI Bus LJ 15 (Summer 2021). He is listed in The Best Lawyers in America and is AV-rated by Martindale-Hubbell. He received his B.A. from Kalamazoo College, his M.M. from the University of Montana, and his J.D. from Wayne State University Law School.
I have observed advocates and mediators who are the epitome of professionals. From them I’ve learned what professionalism looks like in the practice of ADR, whether as advocates or mediators. This article is about what ADR participants can do to enhance their professionalism. In writing this article, I’m drawing on my passion for promoting legal professionalism and civility.
—————
Legal professionalism and civility
Legal professionalism and civility are not the same thing. Civility is a subset of legal professionalism. We know what civility is intuitively. It is treating everyone involved in the justice system with respect. The best view of civility is what almost everyone immediately accepts-the Golden Rule. As applied to lawyers, it is treating others as we want others to treat us. While lawyers are advocating vigorously for clients, it is helpful to remember that lawyers do not litigate without constraint.
The “Professionalism Principles for Lawyers and Judges,” Michigan Supreme Court Administrative Order 2020-23, contains a list of 12 principles that describe professional behavior. The order also provides commentary to further explain what the principles look like in practice. To emphasize the Court’s role in promoting professionalism and civility, the 2020 order is directed to both lawyers and judges — it is a partnership. And, because the principles apply specifically to ADR, the participants in mediation are subject to the principles. The concept of legal professionalism is not new, but we could use a reminder.
—————
What is legal professionalism
Legal professionalism is broader than we might think.
It concerns the lawyer’s role in the justice system, including the promotion and defense of the rule of law. An in-depth discussion of the lawyer’s role in the justice system and defense of the rule of law is beyond the scope of this article.1 However, it bears repeating that lawyers are the guardians of the justice system.
What I am talking about here is more about dedication to doing what is necessary to demonstrate the highest standards of our profession, not the bare minimum. The Michigan Rules of Professional Conduct provide the floor for lawyer conduct. Many aspects of the rule are also found in the “Professionalism Principles for Lawyers and Judges.” For example, the requirement of respect for those involved in the “legal process” may be found in Michigan Rules of Professional Conduct 6.5. The requirement of competence is spelled out in MRPC 1.1, which addresses legal knowledge and skill as well as thoroughness and preparation (the theme of this article).
Because I view professionalism as representing the best of us, that is the area I’ll focus on in mediation practice.
—————
Legal professionalism and mediation
Just as professionalism is a partnership between judges and lawyers, mediation is a partnership between advocates and mediators. It requires the advocates to do their job together with the mediators doing their job. The focus of this article is on the advocates.
Frankly, some lawyers who participate in mediation don’t do their job as well as they could. To be professional, in my view, they should advance the following principles in ADR.
—————
Understand the process
Advocates should consider the process they are about to participate in.
Yes, it is a negotiation. Does the lawyer understand that the mediation process, for example, starts before the mediation session? Has the advocate reviewed the applicable mediation court rules? Has the advocate considered that the nature of the opening offers is not to be trivially considered and that negotiating without much thought is counterproductive? Has the advocate considered how the mediator might be helpful during the mediation?
—————
Preparation
The ADR professional should begin the mediation process well before the mediation and before a discussion with the mediator. It begins with a thorough understanding of the client’s case, starting with its strengths and weaknesses, the opposition’s strengths and weaknesses, and faces the tough issues head on. It does their client no good for counsel to minimize weaknesses of a client position, hoping for a magical cure to resolve them. Assessing the strengths and weaknesses of each side is a critical starting point of risk analysis.
It always seemed to me that the best preparation for the litigation of a case, and preparation for a meaningful mediation, begins at the end.
• Does the lawyer know what a trial of the case might look like, the actual evidence that will be admissible, the list of witnesses, and who might testify?
• Is there a significant motion for dismissal likely?
• Has the lawyer prepared an estimate of fees and expenses to take the case to and through trial?
• Has the lawyer considered whether they have obtained enough information to engage in a meaningful mediation?
• What information may yet be necessary?
• And what additional information will be needed to try the case?
• Has the lawyer met with the client and discussed a risk analysis so that the client understands both the monetary and non-monetary burden and risks of taking a case to trial?
All of these actions help prepare both the client and advocate to participate in a meaningful mediation. Sometimes, counsel for a party wants the mediator to shoulder the burden of discussing the weaknesses with their client in caucus. Mediators should not be afraid to ask counsel how the mediator can assist the party’s representatives. Often, they will ask the mediator to provide their client with a “reality check.”
Mediators know that many advocates come to mediation without any obvious signs of, or with limited, preparation. That means the mediator must spend time working with the parties to make sure they and their attorney are prepared to meaningfully negotiate.
• I have found that an important starting point with lawyers and their clients is making sure that they have fully considered the information they possess and the information they need but don’t yet have and how to get it. It is common to adjourn a mediation so that the parties can exchange additional information voluntarily.
• Also, it is important for the mediator to be prepared to adjourn a mediation to permit the parties to obtain the information they think they need. The last thing any mediator wants is for a settlement to be second guessed because available and important information was not provided to a negotiating party.
I have often asked parties whether they feel they have sufficient information to meaningfully negotiate. Invariably the answer is yes. But, a few hours later, a party realizes it needs more information about a particular issue or issues.
—————
The mediation statement
I have found that most mediators require a mediation statement in advance of a mediation. The statement is intended to prepare the mediator and inform the adversary and clients, of factual, legal, and damage positions.
I encourage the advocates to address the factual and legal positions and not put a damage demand in their statements. Of course, there should be an explanation of the loss by the plaintiff and damages caused by the loss.
There are a few other significant considerations of a mediation statement. The statements are often a window into the professionalism of the advocate. As a mediator, I am looking for the use of adjectives and adverbs. I have learned over time that the best professionals use adjectives and adverbs the least often. The strength of the statements depends on the facts and law presented, not on an argumentative tone.
The statements do not have to be long and most mediators will accept versions of motions to dismiss so the parties do not have to reinvent the wheel.
However, the statements that contain unnecessary and argumentative claims tell me that the mediation itself will require some discussion designed to focus on the merits of the dispute. And keep your exhibits to a concise minimum unless there is an important area of dispute that needs to be highlighted. Just attaching a 250 page transcript is a waste of time and money. If you have concerns about an important factual allegation, by all means raise it by attaching the relevant and necessary portions of the exhibit. But if there is no dispute concerning the existence of a fact, you don’t need to attach a copy of anything because the other side does not dispute it.
Mediators want the mediation process to be a civil discussion as best as possible. We all recognize that even the business cases we see can be emotional for the parties. Yet, yelling and screaming at the other side, in the statements, and in the actual negotiations are not helpful unless the point of the advocate is to demonstrate that the client is very emotional and the emotion will affect the negotiations. However, I prefer that the yelling and screaming be made in my presence and not joint sessions. I can relate to the adversary the intensity of a party’s emotions.
—————
Concession strategy
Those advocates who have carefully considered an opening offer may not have thought further about the possible progress of negotiations.
It is valuable to have, again, considered the end point, i.e. the “bottom line” and how to get there. Mediators want to see progress in negotiations and help the parties exchange offers and counteroffers. However, there is a significant principle that the most professional advocates include in their style. As one of our great PREMi mediators, Paul Monicatti, describes it, the mediation process is better positioned to reach a settlement when the parties are engaged in “principled negotiations.” That is, the offers and counteroffers are not randomly or thoughtlessly selected and the reason for a new offer or counteroffer is logically explained. We know from experience that an offer or counteroffer that has no basis in reality will not be well received. And, if a few are made by a party, the chances of a meaningful mediation are reduced.
The point here is that advocates should be preparing for a mediation by including a discussion with the client about how to move through the mediation negotiations.
—————
Conclusion
Having had the good fortune to observe wonderful, professional advocates and mediators, the following hard work before a mediation pays dividends:
1. Know the strengths and weaknesses of each side’s case and discuss them with the client—especially the weaknesses.
2. Think carefully about how the case will be tried including consideration of evidence and witnesses.
3. Determine whether there is enough information to have a meaningful mediation. If not, work to get the information.
4. Make the mediation statement straightforward and logical, describing the facts, law, and damages suffered or not suffered. Avoid flame throwing language.
5. Make sure that there has been consideration of, and discussion with the client of both the opening offer and the concession strategy.
6. Follow the Golden Rule in mediation statements and the negotiation process.
Footnote:
1See Pappas, ‘Professionalism and civility: You can’t have one without the other,’ 102 Mich B J 40-42 (June 2023)
—————
Michael S. Leib is a mediator and arbitrator with Leib ADR LLC in Bloomfield Hills, Michigan and specializes in the mediation and arbitration of complex business disputes including bankruptcy disputes, real estate disputes, professional liability disputes, employment disputes, and participated on the Alternative Dispute Resolution Council of the State Bar of Michigan, as well as on the Debtor Creditor Committee of the Business Law Section. He is the chair of the State Bar of Michigan Special Committee on Professionalism and Civility. Mr. Leib is on the Commercial Panel of the American Arbitration Association and member of PREMi, an organization of attorney dispute resolution experts who have numerous years of experience in both conflict resolution processes and subject matter knowledge in many industries and disciplines. Mr. Leib is the co-author, with the Honorable Paul R. Hage, of “Michigan Dramatically Expands Existing Receivership Law with the Enactment of the Receivership Act”, 41 MI Bus LJ 15 (Summer 2021). He is listed in The Best Lawyers in America and is AV-rated by Martindale-Hubbell. He received his B.A. from Kalamazoo College, his M.M. from the University of Montana, and his J.D. from Wayne State University Law School.
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