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Conference on Clinical Legal Education
May 18–22, 2002
Pittsburgh, Pennsylvania
Mediation and Clients
Supplementing the Pro Se Record with a Brandeis Brief
Jonathan M. Hyman, Rutgers Law School - Newark
Suzanne J. Schmitz, University of Southern Illinois School of Law
MEDIATION SCENARIO
(A factual basis for a discussion of what can happen between client and lawyer)
SG started working as a security guard for Guardian Services 12 months ago, assigned to a large brewery. She had been a security guard for three years before that, and started to work for Guardian, at higher pay, when Guardian took over the brewery security contract from SG's prior employer. SG understood from her conversations with Guardian before she was hired that she would be able to work for Guardian indefinitely.
SG originally felt she was doing ok for Guardian, except that her new supervisor had a harsh attitude towards her and was making her toe the line too severely. After some time, she began to suspect there was a conspiracy against her. Her supervisor, a younger Latino woman, seemed to have a romantic interest in one of the other security guards, and SG once overheard some comments by some workers in the brewery that sounded anti-African. SG is Nigerian. She is 41 years old.
Six months ago, when SG returned from a one week vacation, her supervisor told her that Guardian was being reorganized and her position had been eliminated. She was offered one week severance pay, which she refused to take. The security guard that the supervisor was interested in was not laid off.
SG was out of work for one month, and then found another security guard job at the same pay, but with less desirable hours. She took the job, but one month ago was laid off again.
SG filed a charge of employment discrimination with the Equal Employment Opportunity Commission, alleging discrimination on the basis of race, national origin, sex, and age.
TASKS OF ATTORNEYS IN MEDIATION
- Help Client Decide Whether to Mediate
- Is Mediation Is Required?
- Will Mediation Help Meet Client’s Goals and Needs?
- Determine When to Mediate (File First?)
- Prepare for Mediation
- Determine Stakeholders to Be Present
- Convince Other Party to Use Mediation
- Select Mediator or Service Including Style of Mediation
- Determine Logistics of Mediation
- Ensure Confidentiality
- Investigate Case and Prepare it
- Prepare Client for Mediation
Will Attorney Attend? - Prepare Pre-mediation Submission
- During Mediation
- Tune into Mediator’s Cues
- Make Opening Statement or Have Client Do So
- Listen to Other Side’s Opening
- Listen to Other Side’s Offers: Listen for Common or Complementary Interests and Respond with Creative Options
- Work with Mediator
- If Necessary, Keep Others Advised
- Track Proposals and Responses
- Review Strategy with Client
- At End of Mediation
- If Agreement Is Reached, Confirm Terms
- If No Agreement Is Reached, Confirm ·Intent to Remain Open, If Appropriate
- Execute Settlement Documents
- Enforce Agreement
- Evaluate Results of Mediation W/ Client
KEY MEDIATION ISSUES
(Choices, obstacles, and opportunities faced by clients and lawyers in mediation)
| Negotiation strategy -- | positional | problem solving |
| Interests to be served -- | narrow | broad |
| ·Discounted dollar value | ·Future needs | |
| ·Laying blame for deprivation of rights | ·Fairness | |
| ·Self-esteem | ||
| ·Being heard | ||
| ·Sharing responsibility for behavior that led to conflict |
Some obstacles to agreement--
- Egocentric bias
- Reactive devaluation
- Prospect theory (differing risk reaction to gains and losses)
- Irrational escalation of competition
- Anchoring
- Distorting force of stories
ARTICLES BY JACQUELINE M. NOLAN-HALEY ON JUSTICE AND MEDIATION
“Court Mediation and the Search for Justice Through Law.” 74 Wash. U. L. Q. 47 (1996).
“Lawyers, Clients and Mediation.” 73 Notre Dame L. Rev. 1369 (1998).
“Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking.” 74 Notre Dame L. Rev. 775 (1999).