“I like you, but I’d never choose you as a mediator.”
I had just finished a presentation on bracketed negotiations in mediation when someone from my past walked up—a plaintiff’s attorney against whom I had defended a wage and hour case years ago. She congratulated me on the presentation and regarded me closely. “I like you,” she said, “but I’d never choose you as a mediator.”
Days later, I was still thinking about that comment. This plaintiff’s attorney could not see past my previous role and assumed it projected negatively on whatever person happened to be in the plaintiff’s position in mediation. Yet I knew that my knowledge of defense caucus strategy could make me a better, more knowledgeable, mediator for all the parties. The interaction made me think about how attorneys choose mediators and what defense-trained mediators can learn from that process.
Choosing a mediator is always an important initial decision when attorneys plan to mediate, and there is a tendency to seek out the familiar. Attorneys may return to a mediator they have previously retained. They may select a mediator from their firm’s approved mediator list. They may call their colleagues and ask for referrals. They may research websites searching for affinity. They may make assumptions based on their previous experiences and perceptions, as did my colleague. While each of these methods provides a level of comfort, it is not certain that they will lead to a wise choice.
This column explains how mediators from defense backgrounds may overcome misperceptions that the plaintiff’s bar may have about their neutrality, highlights legitimate concerns, and offers practical advice on how to address those concerns.
As a starting point, it bears repeating that all mediators—regardless of professional background—must be impartial. The Model Standards of Conduct for Mediators state that a mediator must decline a mediation if the mediator cannot maintain impartiality. Standard II, Impartiality, provides: Impartiality means freedom from favoritism, bias or prejudice. Standard VI, Quality of the Process, in subsection (A)(5) states: “The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another professional is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.” Read together, these standards mean that a mediator can only provide information if they can do so impartially.
Thus, a defense-trained mediator cannot show favoritism to the defendants but may offer information to all parties which can enhance the process and overcome perceptions and assumptions. But how can a mediator who is a former defense counsel safeguard the mediation process and maintain impartiality while leveraging their training and experience to improve prospects of settlement? By acknowledging the elephant in the room, opening a dialogue with the plaintiffs’ counsel, and being willing to listen to and engage with the concerns of plaintiffs’ attorneys.
As in my situation, plaintiff’s counsel may outright reject any suggestion of a mediator who comes from a defense background, jumping to the conclusion that the neutral will be prejudiced against the plaintiff’s claims. After all, the neutral is extremely skilled in defending against and minimizing that type of claim. The plaintiff’s counsel may begin to worry the moment the neutral enters the defense's private caucus. Plaintiff’s counsel just knows that the neutral is plotting with the defendant to pressure a settlement that undervalues the plaintiff’s case. This is an opportunity to acknowledge the elephant in the room— “yes, I am a mediator with a background in defense lawyering”—and then engage in some initial dialogue that highlights the benefits of that experience. Explain the defense-trained neutral’s:
Ability to speak the language. A neutral who brings decades of experience representing CEOs, managers, and insurance adjusters (a defense-trained neutral) can be uniquely qualified to influence the thinking of other CEOs, managers, and insurance adjusters. Such a mediator will explain issues in terms that the defendants can understand, in a non-threatening way, which may result in a more plaintiff-friendly resolution.
Expertise on non-monetary aspects of a case. For instance, such a mediator may understand the effect of the case upon the company’s operations or procedures or upon other litigation, and the potential reputational damage in the community or industry. This allows the mediator to identify the significant non-monetary interests in settling the case. The defense-trained neutral brings years of experience in discussing and advising on those very issues.
Deep background in insurance matters. The neutral may have experience advising defendants on deductibles, insurance policies which are “wasted” by defense costs, whether the insured’s consent to settle is required, and the effect of paying a judgment upon the insured’s loss history and renewal premiums. The defense-trained neutral has special knowledge in cases where the defendant has coverage problems. When the defense-trained mediator understands issues like reservation of rights, right to Cumis counsel, cost of Cumis counsel, bad faith liability, and assignment of claims issues, that neutral can bring these issues to light with the plaintiff’s counsel, exploring strategies and interests which may increase the potential for resolution.
Even with these potential benefits to their clients, plaintiffs’ attorneys may still shy away from choosing a defense-trained mediator. They may be afraid that the neutral will be prejudiced against their case. They may be worried that they will be pressured to accept a lower settlement based on a defense-oriented evaluation. They may question whether the neutral can truly empathize with their client.
These are legitimate concerns in any mediation, of course, not just those where a defense-trained neutral is considered. If a mediator’s evaluation seems to weigh heavily toward either side, negotiations can derail quickly. Parties will likely shut down and be unreceptive to continued discussions, and the neutral then has an uphill battle regaining trust. Regardless of the mediator’s background, one way lawyers can avoid this problem is by choosing a facilitative mediator or by instructing the mediator in a pre-mediation call or at the beginning of the session that no mediator evaluation is sought.
Plaintiff and their counsel may feel bullied by the mediator into accepting a lower settlement range or final settlement. This occurs if the mediator does not safeguard neutrality. Private caucus discussions may take on the tone of direct negotiations between the plaintiff’s counsel and the “neutral” who has forgotten to be neutral. This inevitably leads to the plaintiff’s counsel’s feeling defensive about their case and untrusting of the mediator. When it comes to defense-trained neutrals, the fear of lack of empathy may be particularly acute. For the plaintiff’s bar, mediating a case in front of a non-empathetic and defense-oriented neutral is a frightening prospect. No research or referral can assure the plaintiff’s counsel that the mediator has the skills and experience necessary to empathize with the plaintiff’s experience. This is not an issue that may be easily addressed in a pre-session call or a private caucus conversation, though it is worthwhile to raise the issue openly and continually reiterate commitment to impartiality and to the model standards.
Keep in mind that mediators who have successfully built a client base as former defense counsel were probably able to do that because they developed personal relationships with the clients over time. In other words, the defense-trained mediator probably did more than deliver competent legal services. The mediator developed a skill for listening carefully, acknowledging an understanding of what that person was going through, and empathizing with that person’s circumstances. These skills are essential for a productive mediation—both in terms of supporting the parties and developing trust with their lawyers.
Choosing a neutral for mediation has always been an important and difficult decision for attorneys. Attorneys who are willing to consider their own misperceptions surrounding former defense counsel may discover the unique advantages of choosing a mediator from the “other side.” These advantages may apply equally for defense counsel determining whether to retain a mediator from a plaintiff background. Such a mediator will have a deep understanding of plaintiffs and their counsel, and be well equipped to communicate with them.
When mediators are willing to initiate a conversation aimed at overcoming misperceptions and highlighting professional strengths, they may engage the parties more effectively while safeguarding a central tenet of mediation, impartiality.
