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August 16, 2011 Articles

Ten Things Lawyers Love/Hate about Mediators

By Jobi Halper

While parties agree that mediation is a valuable tool that saves the courts and parties substantial money and time, that does not mean all mediators are created equal. Mediators have varying degrees of skill and vast differences in style. Many states have no training requirements before mediators may practice and do not monitor continuing education for mediators. Even states requiring minimum training requirements—to participate on court panels for example—may not require continuing education to help a mediator expand the tools to resolve litigation. Moreover, absent from a mediator's practice is any "cross-pollination," or the ability of one mediator to observe the style used by another mediator to calibrate the effectiveness of a tool in certain situations. Attorneys often collaborate with other attorneys in the same firm or with other colleagues, or have the opportunity to observe opposing counsel's style and skills. This allows attorneys to examine, gauge, and measure other skills and styles for use in practice. Finally, mediators are rarely given the opportunity to understand the preferences of style of the attorneys who bring their cases to mediation.

Similarly, attorneys rarely have the opportunity to discuss among themselves the style and tools used by various mediators to scrutinize the best ways to work on particular cases or with particular mediators. Therefore, examination of mediation tools and styles that either enhance or obfuscate the mediation process further the process to the satisfaction of parties, mediators, and the courts.

To prepare this article, various attorneys and mediators were surveyed. Below are 10 important issues raised by attorneys, which both mediators and attorneys should consider during the mediation process.

Are Mediators Over- or Under-Evaluative?
Some attorneys say that evaluative mediation is entirely the point. They either want the mediator to help them get control of their own client, or more likely, they want the mediator to force the other side to see the truth about their case so they will settle on a more reasonable basis. More often than not, a mediator hears the attorneys in both rooms ask the mediator to straighten out the other side on the facts, law, or both.

Other attorneys indicate that evaluative mediation is like inviting the judge or jury to settle the case. Attorneys feel they appreciate the strengths and weaknesses of their case and do not require outside guidance from a mediator. Most attorneys prefer that mediators not contradict the advice and analysis they already have provided their clients. Some attorneys find evaluative mediation too invasive.

Both views are correct. Evaluative mediation has a purpose, place, and time. Mediators should not consider themselves doctors examining a case for prognosis. Attorneys appreciate the mediators who respect that the attorney knows the case better than the mediator. But evaluation, in the right circumstances, helps protect the attorney from client reproach and mistrust while focusing the client on difficulties with success at trial. The mediator, rather than the attorney, becomes the messenger.

Clients typically arrive for mediation "revved up" on their case, feeling very confident that they will succeed at trial. Naturally, attorneys zealously build their clients' cases from the moment they accept them, so the pre-mediation focus has been on the "good news." Rarely has a client taken a hard look at the merits of the opposing side's case or considered very important pragmatic issues of admissibility of "hot" evidence, facts that are missing evidence, strong and weak witnesses, issues a jury might find "sexy," the trial skills of the opposing attorney, how insufficient funding may impact the presentation of the case, and worst case scenarios if the client loses, including possible fees and costs to the opposing side.

To address these points, attorneys are forced into a 180-degree turn to begin to focus the client on settlement. Thus, attorneys often need mediators to lay this ground and take the client's attention off the attorney. The client typically hears the mediator's points because he or she is the "objective" party. A mediator's evaluative efforts become even more significant where the attorney has not focused on these issues either or has entirely missed them or other key trial preparation matters. The mediator simply cannot bring the parties to a reasonable settlement position that would be acceptable to the other side until these critical issues, and their impact on settlement value, are clear to all parties and their attorneys. Then the mediator will be able to help the parties intertwine a discussion of the evaluative aspects of a case, the likely outcomes at trial, and settlement values to consider.

Some mediators, however, lack good judgment about what constitutes too much evaluation or force the parties to hear evaluative comments too early in the case. Aggressive or early evaluation leaves lawyers and clients cold and feeling "manhandled" by the mediator. Mediators who begin sessions by highlighting factual or legal failings or trial presentation complications never develop necessary trust from the parties and sacrifice their sense of fairness, which is critical to the mediation process. Such evaluative practices often result in settlement but damage party satisfaction both with the settlement and the process. Clients and their attorneys psychologically must first feel that the mediator "gets" their point before they are willing to consider an alternate point of view.

Do Mediators Wait to Resolve Matters?
Attorneys often wonder whether mediators intentionally wait until an hour before the end of a scheduled session to "get down to work" and move negotiations into a settlement stance to create the impression of a "miracle settlement." It often seems mediation meanders through detailed factual analysis, back-and-forth shuttle diplomacy, wasted time, and a rush of real horse-trading only in the last hour.

However, the course of a mediation and late-in-the-day resolution, while predictable, stems from the innate psychology of clients, and often their attorneys. At bottom, the mediator must move the conversation between clients and lawyers away from their pre-mediation plan, e.g., "what do I want out of this mediation," to a more collaborative and problem-solving thought process. This takes time, because five necessary ingredients must be introduced for a mediation to be successful: cultivating trust, understanding relationships, breaking down negative assumptions, developing a realistic concession strategy, and achieving a sense of value in the mediation process itself.

Cultivating the trust of the parties toward the mediator is critical to the process. Trust includes both a simple belief that the mediator can properly keep each party's secrets and the more significant feeling that the mediator's recommendations, ideas, creativity, and even pleas to continue in the face of a poor counteroffer are worth considering. Attorneys and their clients need time to understand the mediator's style, ideas, and methods before deciding whether to follow them. One method many mediators use is to allow the parties to tell their stories even where the briefs are clear. While this is time consuming, it is necessary so the client can witness that the mediator understands and appreciates the case from the client's perspective, which in turn fosters trust. Clients often are hesitant to share personal "blockers" to resolution, such as psychological or financial issues, until trust is developed. Everycase has some psychological or emotional matter that is blocking settlement, whether it is a feeling of lack of trust, professional reputation, ego, or another matter. Many cases involve private financial blockers. Some cases involve third-party blockers (e.g., spouse, shareholders, boss). These matters must rise to the surface to help both sides achieve an acceptable settlement.

Mediators also need time to study the players in mediation and how they interact. It is not always clear whether the client(s) and attorneys listen to each other. Sometimes, the main decision maker, or the main blocker to settlement, is the attorney; other times, it is the client. Similarly, where there are multiple attorneys or a group of clients in a mediation, the mediator must observe discussions to determine which attorney is the leader and who may be wholly against settlement.

It also takes each side time to abandon the notion that the other side is the "evil empire" with Darth Vader at the helm and to to listen objectively to the real settlement concerns of each side. Each has lived with feelings of mistrust and frustration toward the other side for months or years. Until then, neither side is capable of engaging in necessary discussions of settlement impediments (e.g., lack of insurance, no other job opportunities, need for operating capital). Mediators must break down negative assumptions to move the parties away from polarized views to problem-solving resolutions.

Parties often feel that they need to win their position by gaining concessions from the other side and matching them as if anything not hard-fought is a mistake. If settlement concessions come too quickly, parties feel they gave too much away or they had more to gain than they suspected. Settlement must move at an appropriate pace to ensure parties feel a sense of achievement in resolution, rather than that they "gave away the store." This requires the guidance of a skilled mediator who can read the pace of negotiations.

Lastly, as often as some attorneys feel a mediator should move more quickly to resolution, others feel if a mediator moves too quickly, the mediator is not giving adequate time to the case and is rushing, squeezing out a quick resolution, and (particularly where fees are paid in advance for the session) trying to end the mediation despite that more mediation time had been paid for. In other words, attorneys are looking for value in their mediator.

Parties Do Not Want Mediators to Merely Move Numbers
Attorneys often complain that mediators can be ineffective because they merely carry numbers back and forth like a pawn. Such mediators fail the process and instead must roll up their sleeves to help the parties locate an avenue to resolution.

Mediators must start by helping the parties determine their scalable likely financial result at trial: the percentage likelihood of a great result, the percent likelihood of a terrible result, the quantifiable value of a realistic great result and terrible result, and what it takes to achieve both results in terms of time and money. For many clients, mediation is their first opportunity to identify an appropriate settlement demand or counteroffer using this process. Parties typically need their mediator to highlight that there is no sure thing at trial, reminding them that sometimes unexpectedly juries award "McDonald's-size" damages or a judge snatches away a high damage award by issuing a judgment notwithstanding the verdict.

Mediators who have cultivated sufficient trust must help guide the parties in their opening offer by ensuring that the parties are considering the psychology of the opposing side. Thereafter, mediators must help both parties realize that any progress in counteroffers or demands is positive and that the negotiations should proceed.

At points along the path toward settlement, mediators must challenge each side (typically at different times) to focus on the benefits of settling over proceeding to trial. Many times, the mediator must return to the picture of trial, including cost, time, stress, business interruption, and potential loss. Parties in fight mode often lose sight of the cost of battle and may need help weighing the benefits of potential spoils of war against the inevitable costs even to the victor.

Parties frequently require guidance in shaping an offer to respond to the other party's needs. Typically, the mediator, as a neutral observer, recognizes the needs of a party before the other side does, oftentimes before someone recognizes their own need. By focusing each side on satisfying the needs of the other side in a response, mediators enhance settlement value to both sides, often without extracting financial cost. Mediators do so by bringing insight, options, and creativity to the table when the parties are locked in a pure financial end game.

Mediators Bring More Game to the Mediation When They Prepare
Attorneys regularly criticize mediators who have the opportunity to prepare for mediation and fail to do so, finding that they create a disservice to the session and the entire process. Mediator costs, whether $500 an hour or $15,000 a day, are significant and the parties are entitled to the mediator's best.

The first step to mediation preparation should begin with the mediator's pre-mediation telephone call to each attorney in the case. This call gives the attorney a chance to get to know the mediator and vice versa. More importantly, it gives the mediator the opportunity to focus the attorney on matters that will significantly enhance or detract from the mediation.

During the pre-mediation call, a mediator can start to learn about the players in the case and hear the attorney's perspective on the significant issues and impediments to settlement without the client present. By focusing on impediments to settlement and deal breakers in advance, the mediator doesn't waste time during mediation sessions trying to unravel the case. Pre-mediation calls also allow the attorneys to raise important procedural history (i.e., successful decisions) and pending motions, such as summary judgment.

Where there are multiple parties in a matter, each one separately represented, pre-mediation calls will help the mediator understand the relationship between the multiple parties and their counsel, leaders who are blocking parties and counsel, the dynamics between them, and possible disputes between defendants as to relative liability. Mediators then can develop a game plan for managing the settlement meetings. Lastly, the mediator can help the attorneys focus on bringing to mediation the most important people to settlement.

Is Mediator Bracketing a Waste of Time?
Bracketing (sometimes referred to as double-bracketing) allows the mediator to suggest that if one party agrees to move to position X, the other party will move to position Y. Bracketing allows the mediator to narrow the gap between the parties and to skip a step in concessions trading.

For example, let's say that in negotiations, Party A's opening demand was $110,000, and Party B offered $7,000. Party A counter-demanded $100,000 and Party B responded with $10,000. Now it's Party A's turn, and she only wants to go to $97,000 because she believes Party B will only go to $12,000. The mediator proposes bracketing to Party A, recommending that she consider moving instead to $80,000 if Party B agrees to move to $26,000, narrowing the gap between the parties to $54,000. This turns the ocean separating the settlement numbers into a large lake.

Some attorneys argue that bracketing never works and the second party typically rejects the bracket so there is no benefit other than revealing over-flexibility from the first party. However, others say it is a valuable tool if done correctly.

Bracketing too early typically is not valuable because it doesn't make enough progress or promise any likelihood of settlement as an incentive to parties to make the hard choice to jump ahead. The above example is one such case. With bracketing, the $90,000 ocean between the second demand ($100,000) and counteroffer ($10,000) at best becomes a lake when the parties actually need a pond to feel that real settlement is likely. The expedited move and giving up too much too quickly (especially if Party B believes it has limited settlement authority) achieves no real value. Picture the following scenario instead:

Party A has made the following demands during the day: $110,000 › $100,000 › $90,000 › $82,000 › $78,000. Party B's offers were $7,000 › $10,000 › $14,000 › $19,900 › $24,000. The natural next steps might be A$72,000/B$28,000. If the mediator proposes a bracket of A$62,000/B$38,000, the parties are now only $24,000 apart and in a settlement zone. In essence, the parties have crossed the lake and now are in a small pond. This process helps the parties see that they can complete the settlement without giving up their weighted positions.

Even where bracketing cannot move parties into a settlement zone, however, it can be used to help the mediator reveal whether the parties' general range of settlement tolerance is in sync. If for instance, in the first example, the mediator proposed the A$80,000/B$26,000 bracket and the defendant refused, saying he was only willing to go to $15,000 in exchange for the $80,000 concession, it tells the mediator that Party B's tolerance level for settlement is low. This allows the mediator to frame the next exchanges to explore the basis for low settlement tolerance with the defendant and begin to examine the possibility of an overly inflated value with the plaintiffs. Bracketing also can effectively allow parties to introduce or trade non-monetary concessions to test their value.

Understanding the Parties' Business Interests Will Help a Mediator Be More Successful
Anyone who has represented a company or worked in the business world knows that many decisions made by a company bring into play issues having nothing to do with litigation facing it. These can include issues relating to insurance coverage and self-insurance, shareholders, potential derivative suits, stock market changes, and the timing of news that may impact the company. The employees of a company who are accused of wrongdoing and those who decide to settle may themselves become the target of executive, board, or shareholder upset; in turn, they may be fearful of job loss. Companies not only may be worried about bankruptcy from a bad judgment or too high of a settlement, and they may also be concerned that a settlement leaves them with insufficient operating capital to continue and grow the business. Moreover, agreements that interfere in the decision-making and progress of a company through injunctive relief may be distasteful to a company.

It is rare that the opposing party in litigation considers all of these matters. The mediator must learn and appreciate these business complications to settlement and help the opposing party accept the significance of these matters in resolution. Mediators who skip these important points ineffectively address client concerns. Mediators who work with a company to understand the business and creatively solve problems are more successful.

Mediators Should Not Avoid the Harder Monetary Issues
Attorneys criticize mediators who seem to hide from a battle of numbers and focus first on non-monetary agreements to gain traction. These attorneys argue that while concessions are good, artificial concessions do not help move the ball down the field and waste time. One attorney described a three-day mediation where the mediator focused on everything but money for the first two days. The parties negotiated over the negotiations and agreed on settlement procedures, but the mediator shied away from monetary disputes. On day three, after substantial time and money had been spent, the mediator turned toward the centerpiece of settlement—the monetary settlement. The parties quickly polarized again and reached an impasse, and the mediator spent the better part of the day finding that the parties' financial positions were entrenched. The mediation stalled and ended. Unfortunately, if money is the main goal of the plaintiff, other important concessions should not impact the ultimate likelihood of resolution and waste time.It is imperative that the mediator begin to explore the primary needs of the parties and their limits early in mediation.

Mediators Mentally "Fix" a Number Early in Mediation and Push the Parties Toward It
Attorneys indicate that they feel "squeezed" by mediators who appear to have decided on a number for settlement early in the mediation and then work both parties toward that number. The number is not an assessment of the value of the case at trial; rather, mediators assess the likely amount for which each party would settle, based on the mediator's experience. The mediator thus grafts himself or herself into the mediation as each party, the judge, and the jury, thereby removing neutrality. The parties may settle but undoubtedly will do so with negative feelings about the result and a sense that they were pushed to a number rather than that they reached a number together through negotiations.

Mediators Should Ensure That the Right People Come to Negotiations
Who should participate in mediation depends on the answer to many questions. For instance, the answer to which attorney should attend may involve determining which attorney has the best factual knowledge of the case, but it also may mean bringing the attorney with the most client control or experience in looking past litigation toward settlement. Some law firms have separate settlement and litigation teams so attorneys vested in the success of the case aren't required to help clients make business decisions about the best settlement for the case. In cases involving multiple law firms, which attorneys should attend may depend on who is in a leadership role and who, if anyone, is blocking settlement.

Similarly, selecting the company employees who should attend mediation includes examining which employees have the most knowledge of the facts in the case and which employees may have an interest in blocking settlement to avoid their own appearance of wrongdoing. Some employees may be in a position to make financial decisions. Others, while not driving finances, are best at communicating important settlement considerations to the decision makers of the company to get a settlement that is driven by what is taking place in mediation rather than at the home office.

The mediator can help identify the right people to attend mediation through pre-mediation conferences. Mediators can also help get the right people to mediation by helping an attorney speak to the client or other lawyers to ensure the best possible success in mediation. Mediators who are not comfortable asking the parties who they are bringing and whether it is the right person for settlement cannot effectively manage the settlement.

However, the attorneys and parties in a case must themselves take steps to ensure that the right people attend mediation. Attorneys must do pre-mediation homework to ensure, for example, that the attendee has decision-making authority. For a business client, the attorney must consider who the real decision-makers are and decide whether they need to attend. Where there is limited settlement authority, the person attending the mediation must have the traction to convince those with financial authority of a change in plan where warranted during mediation. The attorney should notify the mediator in advance if the attorney is having a hard time getting the right person to mediation so the mediator can attempt to assist.

Attorneys must also look at their opponent and be sure to raise issues with the mediator to secure the right attendees from the opposing party. This requires the attorney to understand a company's structure in advance to know who controls the purse and the factual witnesses in the case and who may be the "blockers" to resolution. This all requires the attorney who wants an effective mediation and potential resolution to do some homework well in advance of mediation.

Is the Mediator Aware of What's Going On?
Mediators are most valuable when they are sensitive to everything happening between the parties that may relate to mediation. For example, a mediator must know whether the party is controlling the attorney or vice versa. The mediator must know when a party is bluffing or when a party is dealing with a particularly sensitive subject. Emotions are at play in most mediations. As one attorney pointed out, "Mediation is about people spotting more than issue spotting." Thus mediators must be sensitive to the actions around them to be effective.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).