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Lawyers next meet separately with the mediator, and meet again with their client – either privately or in a public session.

Other exercises include identifying interests of the opposing party and developing options for resolving disputes.

“The whole goal here is not to criticize, but to improve skills,” Hoffman said.

Trainers also discuss strategic considerations, such as when to reveal information to the other side, the use of joint sessions and caucuses and various techniques of mediators.

‘Rough and tumble’

The notion that both parties sit around a table during mediation and participate in a relaxed discussion of the issues is a myth, according to Else, who described it as “a lot more rough and tumble.

“You have a person in a personal injury case, and people who are invested in their case, and you are not going to get the kind of open, freewheeling discussion that is going to result in any kind of settlement,” he said.

Typically, a mediation session starts out with the mediator explaining the rules.

While the initial gathering of the parties is usually amicable and a “Kumbaya kind of deal,” after everyone says his or her piece the mediator begins shuttling between the parties separately, he explained.

That’s when the need for advocacy becomes apparent.

“You can’t just poke holes in the other side,” Else said. The information has to be presented to the mediator in such a way that he can digest it, retain it and pass it on accurately to the other side.

The goal of mediation is to develop a series of “meeting points, where the lawyers and the parties can come together,” Rose said. “[That means] I’m going to look not only at what my client wants and needs out of this particular situation, but also look to what the opposing party wants and needs.”

Else said that by the time a case reaches mediation, a significant amount of discovery has already been completed.

“If it’s a personal injury case, I have access to the medical records,” he said. “If it’s a product liability case, I have a good idea of the economic damage.”

“Any kind of advocacy work is kind of like playing poker. You don’t get all the good cards,” Else said. “I try to anticipate where they’re going and how far they’re going to go and what I would want if I were in their position. I know the mediator is going to project those good points, and I’ve got to be able to counter that.”

NITA’s next advocacy in mediation session is scheduled for this fall in San Diego (www.nita.org).

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com