Win-Win: Tips for Mediation Advocacy Competitions

Published on: 2/01/2012

Law student competitions offer great ways to preview the "real world" while developing skills that are certain to aid your career. A rapidly growing competition is the American Bar Association Representation in Mediation Competition, which allows students to flex their advocacy muscles within the mediation process. The growth of this competition likely mirrors the ever-growing expectation of clients to utilize mediation as a cost-effective alternative to trial.

The Virginia Rules of Professional Conduct, specifically the comments to Rules 1.2, 1.4, and 2.1, establish an ethical responsibility of Virginia lawyers to explain the mediation process to their clients. Accordingly, this competition carries great import by promoting skills that all new lawyers should have in their toolbox.

Teams consist of two students, with one serving as the attorney and the other acting as the client. The teams prepare for mediation and submit a written representation plan to the judges. Teams mediate the dispute for a certain amount of time, usually an hour, with the help of a practitioner who serves as a mediator and sometimes also as a judge. Additional practitioner judges observe the round. Each team has the opportunity to reflect on their performance after the mediation in front of the judges, who then score the round and determine the winning team based on both their problem-solving skills and advocacy of their client in the mediation setting. 

Below are our Top Ten Tips on how to achieve success in these competitions.  

1) Know yourself and your partner: Before beginning any competition, it is important to understand how you advocate so that you can play your role effectively. Someone who is very pointed and aggressive when advocating should not discuss the emotional impact the dispute may have had on their client as it may seem disingenuous. Likewise, a participant who tends to be more reserved and contemplative may need to remember throughout the session to assert him or herself and take an active role. Knowing yourself will also be helpful in choosing a partner. Ideally, partners will have a natural rapport and can anticipate where their partner is headed with an idea or argument. This knowledge is particularly important for offering genuine comments during the reflection period after the mediation round where you have the opportunity to gain an edge over the competition.

2) Know your goal: Developing a well thought out and reasonable goal is best accomplished by spending some quality time developing your representation plan, which is the written statement teams submit to judges prior to the mediation explaining their goals and strategy.  As you identify the various interests for both sides, your team's particular goals will inevitably become clearer. The representation plan is also the first impression the judges will have of you, so show them that you have a solid grasp of the issues and your goals. Use the representation plan to explain your strategy going into the mediation so that the judges will better understand why you are taking a particular position during the session. Additionally, maintaining an overall focus will help you weather any curveballs the opposing team may throw your way.

3) Make a powerful opening statement: The opening statement sets the stage and tone for the rest of the mediation. Choose your words carefully. We found it helpful to write a draft statement before each session even though we never read from it. Nine times out of ten, it is wise to allow the client to speak first by presenting a brief synopsis of his or her understanding of the situation. This will help bring any misunderstandings to light early on and hopefully clear the way for a meaningful discussion about the salient issues. Apologizing for any bad feelings or responsibility (but not necessarily liability) during the opening often worked to disarm the other side and potentially force them to change their approach. We then had the attorney follow up to reinforce or rephrase several important, mostly legal, points and the goals for the mediation.

4) Be emotional: Every mediation scenario involves a relationship, even the purely business situations. So, let your client play their part and express emotion over the dispute and the ideas that are shared. Even if your client goes a little overboard, it will give the attorney an opportunity to flex his or her "client control" skills. We don't recommend hamming it up to the point of creating a ridiculous situation; rather we recommend just enough acting to create some real tension with the other side, which will show how serious you are taking your client, their problems, and this competition. One team at Nationals deliberately over played the emotion; they advanced far in the competition, likely out of the sheer surprise we heard this caused other teams. Perhaps we advanced over them because we reacted well by staying calm, acknowledging the opposing client's feelings, and resisting the temptation to become defensive, which would have lead to an impasse. 

5) Caucus: Knowing when to caucus will depend on the particular situation, but realize that it allows you to touch base with your client about proposals and the direction of the discussion. It also enables you to connect with the mediator (i.e., pick up major points) so they can help you meet your goal. The most common times to take a caucus tends to be before presenting an offer or counter-offer or, at the very latest, when the discussions have stalled. We never opted for a break over a caucus. Instead, we suggest using part of your caucus time to show the judges your client counseling skills as well as your mid-session review and adjustments, if any, of your strategy going forward. Revealing your bottom line in confidence to the mediator during a caucus is often helpful to obtain guidance on what questions to ask to help persuade your opponents to move closer to your position.

6) Use the mediator: Aside from caucusing, we used our mediator to help share proposals that might otherwise fall on deaf ears if it came directly from our team. Mediators often take a "plotted plant" approach to these competitions, which places the burden on you to not only persuade the other side to compromise, but also engage the mediator in this unique process. Remember, this is not a four-way negotiation; it is a third-party facilitated negotiation. Take advantage of the mediator's unique perspective as a neutral by engaging their help with setting the agenda, making proposals, clarifying statements made by the other side, and asking questions. One team we faced did something quite novel: they asked the mediator to jot down our ideas on the whiteboard. It was a superb way of pulling in the mediator and forcing him to interact with us, but it also kept things very objective as we saw our ideas on the board and disassociated from the parties such that hard feelings were no longer roadblocks.  

7) Don't rush at the end: It is always odd to see how competitors rush to an agreement at the end. Remember that the actual agreement, if any, is only worth a few points. Most of the points are tied to how the parties conduct themselves before, during, and after the session. When we realized that the session was almost over we opted to pretend that a big storm was headed our way, forcing us to end our negotiations. But before the storm "hit," we always summarized with a list of items we had agreed upon and items in need of future discussion. This shows polish and professionalism and a realistic understanding that compromise takes time.  The judges seemed to favor our frequent reality-testing of ideas on our way to agreements compared with teams that simply agreed to an idea in a very general fashion, for the sake of "reaching an agreement." The latter approach fails to show your ability to anticipate problems by including provisions necessary to protect your client.

8) When in doubt, paraphrase: In this competition, the rounds never seem to last long enough, but if you find yourself in a moment without anything to say and the silence is not helping you-and silence often helped us!-paraphrase what the other side just said. You will find most times that it will continue the discussion in a forward-moving direction. Paraphrasing shows that you are listening and understanding the other side, and it almost always triggers a follow-up question or establishes a point in furtherance of your client's interests.

9) Stay flexible: Coming prepared with creative solutions is a definite must. However, if the other side comes up with an offer or solution that is in the best interest of your client, do not be afraid to seriously consider and even accept their idea. Remember that the process is just as important as the result. Thus, reacting positively to thoughtful ideas from the other side can score you points just as proposing ideas can. The converse is also true: if your ideas are meeting too much resistance to be viable, do not be afraid to back off as long as you can justify doing so in advocacy of your client's best interest and your team's goal.  The need to stay flexible is most evident in how you choose your exhibits. More often than not, mediators and judges reacted negatively to pre-prepared exhibits that operated to box people in instead of allowing both sides to contribute to the solution. Think about it: If you receive a written proposal, no matter how well-intentioned, that purports to "help" your client when you have had no input in its terms, it is more likely to wed you to your position than open your mind up to such a possibility. We limited ourselves to using exhibits as explanatory tools (i.e. as a visual way to better explain our damages, to illustrate the timeline from our perspective, or to explain the layout of the disputed property), and often the occasion called for us to refrain from using an exhibit entirely because no visual explanation was required.  

10) Reflect honestly, but persuasively: After the mediation ends you have the chance to openly reflect about the strengths and weaknesses of both your performance and the performance of the opposing team. Remember that this is the last time the judges will see you before scoring your round. Use it as opportunity to leave a positive last impression by justifying your strategy or decisions made during the sessions. We found that speaking as student-competitors (not as a lawyer and client) during the reflection period helped us have a more expansive and free-flowing discussion. Honestly and modestly identify areas to improve or things to do differently, but also explain why any weaknesses you exhibited failed to hurt you overall. And always speak about the other team with respect.

With these tips, students should find the ABA Representation in Mediation competition both challenging and worthwhile. For practitioners, this competition provides ample opportunity to mentor law students. Virginia's law schools, nearly all of which have student groups devoted to alternative dispute resolution, typically host their own internal competition to determine which teams they send to the ABA Regional Competition. The winners from the regional competitions proceed to the ABA National Competition. This allows interested practitioners to become involved as both judges and team coaches by providing invaluable feedback and guidance.

Faith Alejandro is a member of the Virginia ADR Joint Committee and an attorney with Sands Anderson PC in Richmond, Virginia. Paul Falabella is an attorney with Butler Royals, PLC in Richmond, Virginia. Both are 2010 graduates of the University of Richmond School of Law, and as 2Ls together they won both the Regional Championship and National Championship of the American Bar Association's 2009 Tenth Annual ABA Mediation in Representation Competition. This was the first mediation competition in which the University of Richmond was represented at either the Regional level or the National level. 

• Faith A. Alejandro - (804) 783-7278