by Hugh Hackney
No mediator would intentionally ignore the young lawyer who is most familiar with a particular case, or choose to remain willfully ignorant of technology that attorneys can use to help resolve a dispute. But many mediators commit both these and other mistakes when mediating cases involving young attorneys. Following is an attempt to highlight common missteps that mediators—or any other seasoned legal professional—should avoid when mediating with young attorneys, and actions they can take to make sure they remain relevant with the next generation of lawyers.
Many articles have been published about the “Millennial” generation (born in 1981 or after) of trial lawyers, their expectations personally, professionally, and monetarily, and the impact they are having on the rapidly changing legal landscape.
For seasoned mediators, many new issues arise when these lawyers are involved in the process, even before the session begins. Millennial attorneys are often cast as needing constant feedback and communication to thrive, a trait that older generations frequently view negatively. For the mediator, this is an opportunity. Communication before the mediation about the facts of the case, client issues, previous settlement discussions, and decision makers attending the session can make the mediation more productive. More attorneys are demanding such communication, and some mediators are missing an opportunity by not providing it.
Often, the young attorney has spent many hours working on the matter, including numerous tasks that may have been performed prior to arriving at the mediation, such as preparing pleadings, drafting and responding to extensive discovery, preparing deposition and trial notebooks, drafting motions for summary judgment and responses, and taking depositions.. They may well have more knowledge of the facts, the law, and the evidence than their veteran counterparts. Yet they are often ignored or talked down to by the mediator who is used to dealing with more experienced lawyers. Many experienced, well-qualified mediators are unaware of how their own actions—subtle as they may be—impact the process and the younger attorneys involved. This not only hinders the candor between the mediator and the young attorney, but it can harm the mediator’s reputation in the legal community when that attorney shares feedback with colleagues.
If a mediator instead makes an effort to demonstrate appreciation for all the hard work young attorneys have performed to prepare the case to the point of mediation, it will signal the mediator’s awareness of their important role in the litigation. Additionally, it will give the attorneys a chance to shine in front of their more senior colleagues, which not only helps their careers, but also helps build trust and respect between the attorneys and with the mediator.
Another strength that mediators may want to focus on is the hands-on familiarity that many young attorneys have with technology at issue in a dispute. They are also generally more comfortable working with technology used in the mediation session—Skype, document-sharing programs, social media used as evidence, or other legal industry apps. Ignoring their input is a mistake. Since these lawyers are typically familiar with technology, they may know more about certain aspects of the case than anyone in the room other than the client, and an acknowledgement of that fact will go a long way to breaking the initial resistance to a mediator’s comments, thoughts and ideas.
Millennial attorneys’ familiarity with technology has implications outside the mediation session as well. Their comfort using social media to build professional relationships means that if a mediator does not have a strong presence online, he or she may be missing key interactions with younger attorneys. Mediators today are being vetted as never before by attorney or search engines, social media, blogs, and email exchanges.
In the end, simple courtesy and recognition for all the work performed to get to and present the mediation will help bridge the gap between generations. A good mediator will remember that the young lawyer generally knows more about the facts, more about the discovery, more about the technology at issue and more about the minute weaknesses in their client’s case than anyone. Thus, their inclusion is vital to obtaining a final resolution of any matter. An appreciation of these qualities and the acknowledgement of a young trial lawyer’s importance will go a long way toward resolving the mediation at hand and developing a positive potential for future successful settlements.
Hugh Hackney is a neutral with JAMS in Dallas. He can be reached at email@example.com.