A GOAL WITHOUT A PLAN IS JUST A WISH IN MEDIATION

Lessons from the ICC Mediation Competition for US Advocates

by Arthur L. Pressman

One of the most noticeable differences between US-style mediation and International Mediation is the role that lawyers play. In US, lawyers are often the literal speaker through which all communication passes; clients may resemble potted plants placed in the room’s corner, particularly in joint session. In other parts of the world, Client and Counsel often have a more equal role at mediation. At the 15th Annual ICC International Mediation Competition in Paris last month, the 66 competing teams from law schools around the world were each required to prepare a written mediation plan for Client and Counsel that was simple and elegant in its simplicity. The plan expressly addressed the division of responsibilities and tactics between Client and Counsel; the team’s underlying interests; the team’s BATNA; the other party’s likely underlying interests, and the other party’s likely BATNA. Client and Counsel each had a part in a joint presentation that complemented the other’s role and maximized their respective strengths. 

By planning in advance of the mediation, each team was able to commit to a strategy for achieving its goals, its objectives, likely success and resolution of the conflict. As Antoine de Saint-Exupery has written, a goal without a plan is just a wish. Yes, the goal of a mediation is presumably resolution but how to achieve it?  In my experience as a mediation advocate, and from what I see in mediations that I conduct as a mediator, planning sometimes may not extend beyond a bottom line. The pre-mediation written plan commits the Client and Counsel to a meaningful discussion of interests and options, from their perspective and their opposition’s perspective, that should help achieve resolution that serves both sides’ interests. US mediation advocates who don’t already back up their settlement goal with a plan may want to consider developing, and committing to paper, a similar approach.

To schedule a mediation, or to discuss a potential mediation, contact me at alp@arthurlpressman.com. Many references, particularly among the franchise and distribution bar, available at arthurlpressman.com.