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I’m not certain why, but from my vantage point, 2003 was most certainly not a banner year for attorneys involved in the mediation process. Whether it was in the role of advocacy in mediation, coaching clients outside the mediation room, or reviewing draft agreements, I seemed to have an encountered an inordinate number of attorneys who either didn’t understand their role or didn’t care to understand it. Yes, indeed, there were attorneys who advised, consulted with or represented mediation clients skillfully and successfully. Trust me, I applaud and appreciate each one of them. But this past year it seems the most memorable experiences I’ve had with attorneys involved in mediation have been those I’d really rather forget. Reflecting upon what I fervently hope is an aberrant year, I decided to compile a “top ten list of please don’ts and dos” partly in an attempt to help make things a little better, and partly in an attempt to self-medicate. Some of these are shockingly self-evident; some invite at least a short treatise, but in keeping with the spirit of top ten lists, I’ll be mercifully brief. Number 10: Please, don’t tell your client that litigation will most certainly bring a better result. We all know that none of us know just what litigation will bring. Result-wise, that is. We do all know that in most, if not all, cases, litigation will bring bigger headaches, or bigger heartaches, and of course, bigger bills. So let’s keep in mind that “better” is a relative concept. Number 9: Please be prepared. Whether attending a mediation or conducting a review session with your client, a poorly prepared attorney is not only ineffective, but can actually negatively impact the entire process and undo progress made to date. Number 8: Please don’t become a “minotaur-ney,” that is half attorney, half bull in a china shop. Of course your client needs to know that you are both a zealous and competent advisor, but posturing and bullying rarely accomplish this. And by the way, the mediator is not, I repeat, not your enemy. Number 7: Please be prepared to step out of the “box.” The mediation process offers much opportunity for creative problem solving and non-traditional negotiating. Don’t lock yourself and your client in a paradigm that will limit or restrict your chances for success. Number 6: Please remember the 3 “c”s. Win-win is elusive without cooperation, collaboration and compromise. Number 5: Please respect your client’s goals. The ability to effectively advise your client and successfully evaluate the pros and cons of any settlement offer is dependent on knowing the client and understanding the client’s goals. Number 4: Please don’t lose your perspective. Particularly in the divorce context, I am always amazed at how “personally” attorneys can get caught up in the process. Clients need realistic and objective advice. It’s a pitfall for attorneys in all arenas to be wary of, but particularly so in mediation. Number 3: Please be ready to listen. In many ways, mediation is actually a well constructed and well attended conversation. In order to participate skillfully, it is important to be ready, willing and able to listen. This is in fact a tall order for most of us, but a definite prerequisite to success. Number 2: Please don’t attend, if it’s not in good faith. There is absolutely nothing more detrimental to mediation than an attorney who does not participate in good faith. Mediation is not about free discovery, and it will be hard pressed to withstand hidden agendas, cross-examination or intimidating tactics. Hyperbole and half truths will not further the goal of resolution, nor will any misbegotten notions of enlisting the mediator as ally. So come in good faith, act in good faith or kindly stay home. And last, but not least … . Number 1: Please treat everyone in the room the way you would like your client and yourself to be treated. A little collegiality, respect, and dare I say, compassion, goes an awfully long way towards resolution, which is, after all, why we’re all in that room. So, since we’re all in the same room, here’s to working together to make 2004 the year of the effective mediator, the enlightened consulting counsel and the satisfied client. Frances Z. Calafiore is a Hartford-based attorney mediator. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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