For the past seven months, CalBizLit, operating under the birth name Bruce Nye, has been regularly serving as a mediator in Northern California. With this peacemaking experience, and after a decades-long history of participating in mediations as an advocate, CBL is thinking it would be worthwhile to write about what makes mediation succeed and what makes it fail. So we’ll be providing some posts on that subject, starting with this one. Nye’s mediation website is at www.brucenyemediations.com.
Regular litigators, corporate counsel and insurers are well aware of the mediation process, and many of them have much experience in the mediation world. Once upon a time, we settled all of our cases by picking up the telephone and exchanging letters (remember letters?) Sometimes in litigation with represented parties, the parties ought to be able to reach settlement by sitting down together, talking on the telephone or both. But in many other instances, the mediation process – where a neutral works with both sides to help them reach a decision they control – is the way to go. So here are some initial thoughts on five things likely to make a mediation more successful.
More after the jump.
1. Pre-mediation meetings: Many mediations start with a five-minute spiel on the mediation process, circulation of a mediation and/or confidentiality agreement and then opening statements or caucuses. This mediator thinks the likelihood of success is much greater when the mediation is preceded by pre-mediation meetings with the parties and their lawyers, maybe days in advance of the mediation, and either in person or over the telephone. What comes from the pre-mediation meetings? Assurance that all parties have a genuine interest in reaching resolution, and that all individuals necessary to make commitments will be present or, at a minimum, readily available. A preliminary discussion of expectations all parties have for the process and outcome. A preliminary establishment of rapport between the mediator, the parties and the lawyers. An introduction to the process for inexperienced participants, and explanation of the mediator’s process for both newcomers and veterans, and confirmation of the time commitment. An assessment by the mediator of whether the process should largely be facilitative, transformational, directive/evaluative or some combination of those. Finally, this is the time to get the mediation and/or confidentiality agreement signed. Then, when the mediation starts, the parties and the mediator can get right to work.
2. Empathy by the parties and their lawyers: No, not the warm and fuzzy kind. We’re talking about “understanding . . .the feelings, thoughts, and experience of another” (part of the Merriam-Webster definition). In other words, answering these questions about the other parties and their lawyers: “What do they want?” “Why do they want it?” “What do they need?” “Why do they need it?” “What do they care about?” “What emotional obstacles are likely to get in our way?” “What can I contribute to this settlement that won’t cost anything?” Sometimes the answer to these questions can be as simple as an apology at the outset. More often, it’s much more complex than that. But this is definitively the kind of empathy analysis that can pay off if done in advance.
3. Minimize the hidden ball trick: Let’s start with the worst possible way to approach mediation: the plaintiff attorney has solid, irrefutable evidence that her client has a past and future earnings loss of $2 million, and keeps it to herself. The defense lawyer has sub-rosa video showing the plaintiff, who claims a permanent physical disability, has been rock-climbing, horse-back riding and participating in triathlons, and doesn’t plan to spill it until the mediation. So after four hours of grueling mediation, with an offer and a demand millions of dollars apart they both decide it’s time to drop their bombshells. And guess what? The case doesn’t settle.
What a lawyer often forgets is how much she needs the other side’s lawyer. She needs him or her to prepare a plaintiff who is unfamiliar with the litigation and mediation processes for what lies ahead, for the pros and cons of settling, and what the plaintiff should realistically be expecting. A plaintiff in mediation who gets a rude surprise may be shocked, but quite possibly he is too shocked to make intelligent, reasoned decisions. And the plaintiff lawyer needs defense counsel to put together the package necessary for claims adjusters and claims committees to realistically evaluate the risks of not settling. Insurers and other institutional litigants react very badly to surprises, and respond to ball-hiding with annoyance leading to fury, not rational settlement decisions.
Something that maximizes the hidden ball is the exchange of “confidential” mediation briefs. In other words, parties want to try to convince the mediator of the merits of their case. The problem, of course, is that the mediator is not going to pay money to settle the case, nor is he or she going to discount the cost of settlement. It is the parties and the lawyers who need convincing, and more shared information increases the likelihood that they will be convinced.
4. Listening by the parties, the lawyers, and above all, the mediator: It has often been said that a critical skill for trial lawyers is listening. This is just as important for the lawyers in mediation, and perhaps even more important for the mediator. Through careful and analytical listening, the parties are most apt to catch the nuances of what the participants’ interests are, and not just their positions. This increases the likelihood of resolution.
While the mediator also needs to tune into nuance, he or she must also engage in “empathic” listening – the process of unpacking a complex or sometimes pain-soaked narrative and letting it float to the surface. For many mediation participants, particularly plaintiffs in personal injury or employment disputes, the mediation is, effectively, the trial, where they get to tell their entire story. A successful mediator increases the likelihood of successful peacemaking by adopting a posture, words, phrases, and a manner that encourage what some would describe as “venting.” Any party who is emotionally invested in a dispute is more likely to come to the peacemaking table if he or she is satisfied he or she has had a full opportunity to tell the story, and has had it understood. Many mediators will combine an attentive posture with “tell me more” and “what else do I need to know?” and reflective listening techniques until the parties have said all they can say.
5. Respect, Patience and Working Past the Anger: At the pre-mediation meeting and again at the outset, I generally tell participants that I have one rule: This is not a lawyer TV show or movie, people aren’t going to yell, pound the table, jump toward one another or throw things out a window. Instead, they will speak respectfully. This just about always works. But at some point, when mediation participants start to realize they will not be able to get everything they wanted, but that working out a compromise and giving up some things is better for them than no deal, anger starts to kick in. This does not mean the mediation is failing. The participants and mediator need to recognize that anger is often part of the process. With patience, they can get past it, make peace and make a deal.
Photo credit: Jean-Pierre Dalbéra, licensed under Creative Commons and posted without modification.