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LEFT BRAIN APPEALS

The “Devil’s Advocate”

As noted above, because they are directly involved in the dispute, parties and their attorneys often have difficulty objectively evaluating the strengths and weaknesses of their case. As such, it helps to have a person who is perceived as a knowledgeable neutral to engage them in a dialogue regarding the merits of their claims or defenses. The purpose of such a discussion is not so much to prognosticate about the likely outcome of the litigation, as to expose the uncertainties of the litigation.

The mediator must be careful to establish a rapport, and his/her credibility, with the parties and their counsel before he/she engages them regarding the strengths and weaknesses of their positions.

The mediator should also explain that: (a) he/she is playing that role with the other party and its counsel as well; and (b) the party will benefit from the exercise even if the mediation fails.

There are two ways in which the role of the “devil’s advocate” may be effectively played without unduly alienating a participant.

The first is by asking questions regarding the facts as they apply to the elements of their causes of action or defenses. Applying a “Socratic” methodology, the mediator seeks to lead the participants to “discover” the weaknesses in their positions. This approach requires a great amount of skill and substantive knowledge.

The second is by explaining the factual and legal positions of the opposing party, and seeking input as to how best to counter them in playing the role of “devil’s advocate” in the other caucus. When the party or its attorney provides a response, the mediator may meet it with a further inquiry regarding a hypothetical counter-argument from the opposing side, such as: I understand your point, but what if attorney _________ says ______________________________________?

The beauty of this approach is that it serves to create a bond between the caucus participants and the mediator at the very time he/she is exposing potential weaknesses in their case. This is because they are cooperating together to come up with responses to the opposing party’s positions. To the extent the caucus participants fail to provide an adequate response, a weakness in their position will have been exposed.

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