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April 21, 2021 Practice Points

The Mediators Speak: What’s the Most Common Mediation Blunder and How Can You Avoid It?

Two mediators discuss the failure to prepare, acting as if mediation is a trial, and other mistakes that can make mediation less successful.

By Jeff Kichaven and Paul J. Van Osselaer

Paul J. Van Osselaer:

Apart from occasional offensive behavior or total lack of preparation, I haven’t seen many true blunders. But I sometimes see a squandered opportunity caused by counsel’s approach to mediation that drove parties farther apart or cut-off serious consideration of risk by an opponent. It usually emanates from attorneys not appreciating that mediation advocacy differs from trial advocacy. Effective advocacy always depends on the audience. In trial it is the judge or jury. In mediation it is your opponent. Why should that change your style of advocacy?

Trials have winners and losers, so it is appropriate to proclaim vociferously to a neutral judge or jury that you are right and your opponent wrong—even a villain. You keep it up through the trial because you don’t want or need any decision from your opponent. It is the neutral’s views you want to change from neutral to a declaration that you win. In mediation, you want to change your opponent’s views (and they yours) about risk and not who in fact wins or loses. If either side’s advocacy fails at mediation, the audiences just walk away. You are negotiating for something that the other party doesn’t have to give you.

I sometimes tell parties that their mediation statements, while filled with facts and law, both say the same thing and could have been just two sentences: “Dear Paul, please talk sense into them. Thank you.” While it usually gets knowing smiles, I say it as a way of reminding parties that advocacy of trial positions is only a starting point for a mediation. As a mediator, I don’t decide anything, but I can sometimes get evaluative in a room to help a party appreciate their risk differently. Effective mediation advocacy by the attorney, especially if there are direct communications at mediation between the parties, needs to take a similar approach. The focus needs to be on risk analysis and not solely on right or wrong. I have yet to have a party give up because the other side’s unrelenting advocacy of a trial position.

In a mediation, both sides want something from the other, be it money or a release. So repeatedly telling a party that they are a villain for not giving you money or a release causes that party to react as anyone would. It puts them back on their heels and causes them to dig in further. At trial, you don’t care; at mediation, you do. Your opponent knows how strongly you feel. You can begin the mediation with all the trial advocacy you want, but ultimately dialing it down a bit is often the better approach. In many ways it is a matter of tone or how you act. Claims of “you filed a frivolous case!” or “you engaged in bad faith!” throughout a mediation is less likely to move a party’s settlement needle than “we think a court will easily find” such to be the case. Trial advocates rightfully balk at such phasing. But at a mediation, it is more likely to pay off. Even going so far as to show a recognition of your own risk can be useful in negotiating because —if conveyed well by the mediator—impliedly invites the other party to do the same and makes it easier for the other party to do so. Similarly, confidential advocacy to the mediator that focuses on risk and recognizes some possibility you may not win can—when it occurs in both rooms—assists the mediator in finding a common ground. Besides, if there is no settlement, you’ve least set the stage for a better understanding of each other’s position beyond the noise of pleadings.

Your case may not settle at a mediation, but effective mediation advocacy—and a skilled mediator—can put your case in the best position to settle.

Jeff Kichaven:

The most common blunder in mediation, as in life generally, is failure to prepare.

While proper preparation for mediation entails many steps, one step many lawyers overlook can spell the difference between a productive mediation and one that goes nowhere—30 minutes on the phone with your mediator between the time you submit your briefs and the mediation day.

Everyone knows why mediation briefs are important. A shared brief orients the mediator to what the case is about, why your side is right and the other side is wrong, where the case stands procedurally, and the history of settlement negotiations. It impresses the other side with the righteousness of your cause, your resolve, and your willingness to bargain in good faith. A private side letter informs the mediator about the other side in ways which might be awkward to share with the other side itself. It may also raise some ideas about settlement that might disadvantage you if shared with the other side prematurely. These documents take a lot of work.

But they aren’t enough to set the groundwork for a productive mediation day.

These briefs are left-brain documents. They focus on logic, reason, and argument. A good mediation is a whole-brain exercise, though. A good settlement must feel right emotionally as well as make sense logically. Accordingly, we need to prepare for the right-brain issues of emotions, motivations, and personalities as well. That’s tough to do in writing. Many lawyers are unskilled or uncomfortable writing about feelings, particularly if they involve your own clients and your relationships with them. Mediators need to know about it all, though, to prepare for all the challenges standing in the way of settlement. We therefore need another avenue of preparation.

That’s where the phone call comes in. On the phone, it’s easier to get real about what Hollywood calls “the backstory.” The emotional, psychological, and relational issues so important to a 360-degree understanding of how we got here, and how we might move forward. Graced with this understanding, the mediator is in a far better position to guide a process that addresses both the left-brain and right-brain aspects of the dispute.

The result? Settlements become more likely—and more satisfying.

All it takes is a 30-minute phone call. Don’t leave this step out.

Jeff Kichaven is with  Jeff Kichaven Commercial Mediation. Paul J. Van Osselaer is with Van Osselaer Dispute Resolution PLLC.

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