The canon of ethics states that an attorney should represent his or her client zealously. How does zealous representation resonate in the mediation process?

Zealousness in litigation is often viewed by attorneys as not showing their hand and protecting material damaging to their clients. In addition, it is not uncommon to express opinions (as opposed to facts) to both the opposing counsel and the tribunal in a blustery fashion (puffing). However, zealous representation includes observation of Rule 1.4 of the Model Rules, which requires the lawyer to explain to the client, regarding the matter under consideration, options so the client may make an informed decision. Clearly this includes facts and law harmful to the case and should never, as Jerome Frank warns, predict an outcome. (EC7-5 states that the client's interests are furthered by a discussion of the likelihood of success. Likelihood of success means probability.)

Often we hear about attorneys telling their clients that the case is a slam dunk, etc. Seldom do we hear about the zealous attorney advising the client regarding alternatives to litigation. This is counter-productive to zealous representation. Most cases, perhaps as high as 95%, result in settlement. It would seem zealous representation includes advice to the client on the amount of time a litigated matter takes to reach a resolution and the stress and psychological impact of waiting out the discovery process, motion practice, interruptions in the client's life as a result of appearing for depositions and culling through potential documentary evidence to help prepare the lawyer. These and other factors beg the question: Why not address a resolution now rather than wait two years? Why not save an extraordinary amount of legal fees in the litigation endeavor since most cases settle anyway? Isn't this part of the attorney's role, i.e., counseling?

With this in mind, mediation has gained extraordinary impetus in the legal community. It provides an effective and efficient way to resolve conflicts and, with a proper mediation process by a neutral, the party will vent the underlying reasons that form the basis of the need for litigation. Frequently, the client's motives and interests are more deeply rooted than a financial outcome. It may be feelings of lack of respect, self-esteem or other sub-surface dynamics. The mediation process may even give the party his or her "day in court."

The question arises: What does zealous representation in mediation require? The paradigm shift from litigation to mediation requires the advocate to abandon, or at least reconsider, the approach to disclosure, and other matters pertinent to an adjudicated resolution. In fact, in the mediation process, the advocate is required to participate with good faith to approximate a win/win outcome. Notwithstanding, there remain significant legal duties that are expected. A few examples may be useful.

As a preamble, know the case—both the facts and the law. In all likelihood, the matter either has been in litigation or the process of being prepared for litigation. The case should equally be prepared for mediation. Charts, timelines, a statement of facts, pre-mediation briefs and other tools are equally valuable for the mediation. Mediation doesn't discount the need for preparation. The attorney must still be aware of favorable and unfavorable statutory and decisional authority as well as documentary evidence. Evidence is still important in having the opposing counsel, and the party, properly evaluate their case and goals. Rather than "horse shedding" the client, the attorney prepares the client for open and free communication.

In litigation matters, I have often advised clients that I need two days of preparation with the client for each day of depositions. Obviously, I want to be prepared but I want the client prepared as well. This doesn't change in mediation. The client must be prepared and be conversant with the mediation process and the expectations. The commonalities in preparation of a client for testifying in court and presenting interests and concerns in mediation are too numerous to mention. The story must be clear and convincing. Credibility is still critical.

Opening statements are important. Who will make it—the attorney or the client? It differs considerably from opening in a trial context. Rather, it needs to emphasize key facts and perhaps the damage the party is experiencing, or has experienced. The damage may be psychological, sociological, etc., in addition to financial.

I remember a client just before trial asking "what does the judge do?" I found this interesting since it helped me better prepare the client for the process. So too, in mediation, the client should be aware of what the mediator does. The first thing I would say is that in a trial the client only gets to say what the court permits; on the other hand, in mediation, the client is encouraged to tell the whole story and underlying interests.

Assuming that the attorney, as is required, assesses the goals of the client, the attorney begins mediation representation by explaining the process, carefully assessing which mediator is best suited for the conflict at hand, and preparing the client for negotiation strategies. Importantly, the attorney should make clear that his or her role has shifted to facilitation of an agreement between the parties.

There are other considerations for the advocate in mediation. Perhaps the most fundamental considerations for the attorney, in his or her good faith efforts, have to do with the attorney's own sense of identity and self-awareness. The attorney must subvert his or her ego for the good of the process. The tendency of many attorneys is to prove their brilliance. The need to be admired or correct must be released. Without a release by the attorney of self-investment, a favorable resolution is often difficult if not impossible. There are other considerations for the attorney in this regard. The ABA Model Rules of Professional Conduct direct the attorney to abide by the client's decisions about the representation objectives. Under the Rules, settlement decisions are strictly left to the client.

Literature in the area suggests there are several differing models regarding the attorney's role. Preferably, in complex litigation, the lawyer is an "expert contributor." However, in my view, it would seem that the lawyer services his client and the process by serving as a "supportive professional participant." In this capacity, the attorney assists the mediator and the client in facilitation of a resolution. Essentially, the attorney partners with his or her client to come to a solution; and, with respect to the mediator, collaborates in an inter-disciplinary approach. Legal advice is still given but, in addition, the attorney coaches the client in addressing client interests and addressing alternatives that are realistic. As a supportive professional participant, the attorney approaches the mediation process, that, while the law is certainly relevant, it does not need to be determinative. What is the requirement of counsel in this mode? Simple: Don't co-opt or dominate the process. Let the client speak for himself/herself. Notwithstanding, the readiness to provide "on the spot" legal advice, when needed, is preferable and accelerates the mediation process.

Once the process begins, the zealous attorney helps manage the client's frustration in expectations. A reality shift may be required as the client's reality is what it perceives to be true. Naturally, the attorney stands ready to evaluate resolution options with the client.

It is my firm belief that if an attorney's true objective is to litigate, mediation shouldn't be pursued. A word about the attorney's conflict: Clearly the attorney earns higher fees by litigating to an advanced stage of the process. However, it may be that a properly "earned" fee dictates early resolution. Professional evaluation of what is best for the client is so fundamental it requires no discussion. Equally fundamental is an obligation not to interfere in a settlement once the client is satisfied with an acceptable resolution option and agreement.

Zealous representation is often more difficult in the mediation rather than litigation process. Be prepared to wade into dynamics well beyond the law. You will have to prove that law school is not where creativity went to die!

Albert J. Pirro Jr. is owner and principal consultant for The Pirro Group in White Plains, N.Y.