All members of the Virginia bar are aware of their duties to the profession. And, in my experience, they perform them admirably! In mediation, the context changes and calls for some subtle adjustments.
Before the mediation begins, the attorney and client need to think about the difference between an adversarial posture to one that is more cooperative. In litigation, a party advocates for positions while simultaneously trying to undermine the other party’s positions. By contrast, mediation is prospective in nature and tries to help move parties toward mutual benefit.
Sometimes when we caucus in separate rooms, people forget that we are still “in the room together.” In other words, the caucus time is not best used to argue (strenuously) your theory of the case.
Some questions to ask your client before and during the mediation:
“What information would help you see the other side’s point of view?” “What information could we share with the other side that would help them make a more informed decision? “What is the most important goal for you today?”
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