Today, 29 years since my law school graduation, I practice in a different universe. Who could have known it then, but the trial-centric model on which much of legal education was based would be largely obsolete within a decade, and decaying within two.
Advances in technology have changed the course of litigation and inextricably led to the rise of alternative dispute resolution. Mediation prevails as the new normal.
I entered law school in 1986. Technology was at its inception. We still went to the library. We read legal encyclopedias and longed for an on-point American Law Report annotation on our issue. Lexis and Westlaw used seemingly impenetrable codes, which we entered while sitting before a blank screen with a blinking command prompt.
It was but a hint of what would come. Internet use and digitized data storage have cascaded into litigation like a virtual avalanche. Data, metadata, and gigabytes of digital information appear in all but the simplest of cases.
So, what did this mean for the litigator?
And what about the client contemplating litigation?
Simple. For both, it meant $$$$!
All save the smallest of cases are now exponentially more expensive. The civil trial is all but vanquished. As a result, the mantra has shifted from “Try to settle; mediate if unable” to “How soon can we mediate?” even before an opening demand and a responsive offer have been made. While it’s still our responsibility as counsel to prepare the case for trial, the increasing likelihood is that we will take a detour off the litigation highway into a mediation rest stop.
Despite the shift toward mediation, much of what was and still is taught in law school and the litigation dogma we absorb well after that remain geared toward litigating, winning, and crushing our adversary in court. But the rules, doctrines, tactics, and admonitions on effective litigation—and, more specifically, the trial techniques themselves—would be disastrous if used in mediation.
That makes sense. When we alter the premise, the conclusion changes too. Thus, many of the fundamental principles underlying litigation do not apply to mediation. Yet, while the foundational differences underlying litigation and mediation are painfully obvious in theory, they are easily and often ignored in practice.
What are some of the critical distinctions between a lawyer’s approach to litigation and an effective lawyer’s approach to mediation?
First, the mediator is an ambassador, not a decision maker. In litigation, we try to convince neutral parties to rule in our favor. Typically, one neutral decides the facts and another neutral decides the law. In the end, those neutrals acting together will bind us to a ruling.
But in mediation, the only neutral party—the mediator—is utterly powerless to bind us to anything. Rather, the mediator serves as a go-between whom the parties use to bridge the divide between their views about the case and to establish enough common ground to induce and support a settlement.
Participating in mediation in the same manner as if at trial would lead to a wasted session and an angry and alienated adversary. Some think that presenting one’s best trial “game face” will scare the other party into settling. That seldom if ever works. The advocate in mediation has to balance many more factors and is engaged in a far more subtle enterprise.
While the capable mediator will do everything to facilitate a settlement, she depends on the parties to give her the tools she needs to broker a deal that she cannot mandate. Thus, nearly everything done in mediation must be calculated to effect a positive change in the adversary’s position. Alienating the adversary while trying to convince the mediator is worthless.
At the same time, the mediator is not powerless. Her authority and influence derive from the consent, trust, and confidence of the parties. Indeed, she may become something of an oracle who can engage the parties and bring them together, and to whom the parties turn for advice and guidance.
Second, in mediation, the parties are the key decision makers, while in litigation the judge is the key decision maker, prized for her purported neutrality. Ideally, she comes to the courtroom as a clean slate, not knowing the parties or any of the facts. After hearing what we have to say, she delivers typically an all-or-nothing, zero-sum judgment producing both a winner and a loser.
By contrast, in mediation, the decision makers are the parties themselves. They arrive in mediation pre-equipped with very specific notions of what has happened, who is in the right, and what the case is worth. Adversaries cannot be persuaded to rule in our favor, strike their tent, and go home. By definition, mediation depends on compromise between two opposing, perhaps polarized, positions.
Over the course of the proceeding, we hope to edge our adversaries toward an acceptable settlement point. We must persuade them, in a constructive way, of strengths in our position and flaws in theirs. We use our skills in diplomacy and the mediator’s unique role to massage the parties’ positions toward each other. Metaphorically, if litigation is a sumo match in which we seek to push our opponent out of the ring, mediation is a dance in which we hope to lead our adversary closer to our side of the floor.
Third, in mediation, the adversary is not the enemy. In litigation, it’s often tempting to take the attitude of “Who cares what my adversary thinks?” It may well even be an effective litigation tool to attack and vilify the adversary.
Convincing a jury that “the other guys” are the bad guys, cannot be trusted, and the like is a tried-and-true trial technique. Indeed, we all dream of that withering cross-examination in which our adversary and our adversary’s case collapse on the stand before our eyes.
But the premise that we can prevail in litigation by vanquishing our opponent has no place in mediation. Everything that we share with our adversary in mediation must be calculated for its effect on that adversary. We alienate or humiliate at our peril.
Often, a classic carrot-and-stick approach is called for. In such a balanced approach, we may persuade our adversary to see beyond his initial impression of the case and even empathize with some of our positions. But we cannot do so with a bludgeon.
Indeed, often our most important goal in mediation is to alter our adversary’s impression of our client. This may be the most significant, and perhaps only, position we are likely to change. But the impact can be nothing short of transformational. The hardened insurer becomes a person, a parent; the “malingering” plaintiff becomes the genuinely impaired breadwinner.
Our ability to alter the impression of our client in mediation can directly affect the other side’s evaluation of the case. As a defendant, we look quite carefully at the impression made by the plaintiff and his “jury appeal,” and we solicit the mediator’s perspective on this as well.
Mediations increasingly take place before even the first deposition, and presenting a likable client at mediation may both prove invaluable and directly affect how our adversary evaluates the case. The inverse, of course, is also true.
There are other differences. Mediation involves and requires an ongoing exchange of information. This is quite distinct from litigation presentations. At trial, each side bombards the judge or jury with information toward the goal of attaining a single response in the form of a decision or verdict. We selectively present to the trial fact finder that which favors our position, and of the rest only those we tactically must concede.
By contrast, mediation involves an ongoing exchange of information. Some of it is direct; most is through the neutral. The information being shared may be something as basic as movement in offers and demands, or something more theoretical like acknowledging some obstacles to a dispositive motion or other weaknesses in our case and theory.
Typically, parties will pose questions through the mediator, and the mediator’s responses will set the pace for progress. The wise mediator may deliver even a negative response with some silver lining, or perhaps a follow-up question or analysis, to keep the conversation alive, sustain dynamic negotiations, and avoid surrendering momentum.
For the exchange to be successful, both parties—and the mediator—must share the goal of keeping information flowing. Typically, when it stops, so too does the mediation. Sometimes, it seems that the only way to sustain the dialogue is to make concessions in the hope they will be reciprocated.
Setbacks in mediation can help, not just hurt. We all dread the trial setback—the witness collapsing on cross, the document we missed, the fatal admission extracted by our adversary from our expert. At trial, even a single setback may be fatal.
In mediation, a setback can facilitate settlement. Counsel may be well served to embrace setbacks. Bad news and setbacks are more benign in mediation than at trial. In mediation, a setback can be a tool that a party can use to justify movement and bring the case closer to resolution. Sure, when it comes to bad news, we would rather be the bearer than the recipient, but it nonetheless closes the gap.
Still, convincing the adversary to part with those gems at mediation, rather than hold them in reserve for trial, is another matter. Mediation is a bit of a poker game. Understandably, lawyers are reluctant to play all their cards, lest they find themselves trial-bound having given away their best ammunition and surprises.
But experience has shown that, given the abundance of required disclosure, few if any surprises remain unexposed before trial. Thus, you may be well advised to relinquish a secret or two when it has the potential to resolve your case—and perhaps resolve it closer to your target figure than your adversary’s.
Also, the way openings succeed in mediation is vastly different from how opening statements work at trial. Our trial opening, calculated to lay out the evidence and showing our entitlement to a win, has little value in mediation. And because, often, much of a trial opening is directed at the failings of the adverse party, it is a potentially divisive instrument if deployed poorly in mediation. Indeed, much of the disfavor for joint sessions and opening statements in mediation is rooted in the experience of having those openings follow a trial model and thus go horribly wrong.
To deliver an opening designed to succeed in mediation, we must shift this approach. Winning is not the mediation paradigm. Instead, the mediation opening should be a tone-setter. It will not win the case or ensure a verdict, but a well-played opening can begin realigning the parties from an adversarial mode to a more cooperative posture. Remember, your target audience is not the mediator, but the adversary.
Of course, the approach will vary depending on the case and the circumstances. At times, a strong and aggressive opening may be appropriate. A plaintiff’s emotionally charged personal injury case is a prime example. That plaintiff truly may need her day in court, and a strong opening from her counsel may be both validating and cathartic for her. It may function as a critical element to moving the case toward settlement. And although the mediator is not a judge, the plaintiff may really need the opportunity to tell the story to a disinterested—yet highly “interested”—neutral.
In such a case, the defendant may be better served at mediation by a more conciliatory and conversational opening, than by an equal and opposite approach that would be appropriate at trial. This is not to suggest that the defendant fall on his sword, and there is nothing wrong with acknowledging points of disagreement. But a genuine expression of sympathy and deep interest in working together to resolve the case can serve the theretofore demonized defendant (and insurer) quite well.
Of course, because of the differing goals of mediation openings, those openings also may take different forms. Where it would be unheard of in trial, the mediating parties themselves often have a role to play in the openings. A plaintiff may wish to tell her story directly. And a defendant may be the best person from whom an expression of some manner of apology or regret can set the proceedings on an entirely new and productive path.
Sometimes, mediation provides a path to resolve divides between lawyers and their own clients, too. In the years of preparation preceding a trial, the parties and their lawyers strategize and agree on tactics and approach. Sure, some adjustments at trial will be inevitable, but generally there is harmony on each side of the courtroom as to overall approach. And to the extent there is any infighting on either team, it is out of sight and invisible to the judge and jury.
This is not necessarily true for mediation. It is not at all uncommon for lawyers to find that they are also mediating with their own clients. The mediator may discover that her greatest challenge is not to settle the case but to get a given lawyer and his client on the same page. Although seldom openly discussed, lawyers often mediate for assistance in dealing with a difficult client and to enlist the mediator’s assistance in client relations.
I can personally attest to having asked a mediator to assist me with such a private agenda. And when I serve as mediator, client difficulties and control issues are mandatory topics of discussions in my pre-mediation teleconferences with counsel. One advocate responded to that line of inquiry with “I wish my last mediator had asked me that!”
Disconnect occurs at times because plaintiff’s counsel has oversold the value of the claim; or perhaps defense counsel has under-reserved. Regardless, both may need help from the mediator to bring a reluctant or unrealistic client into a position from which they can settle the case.
In litigation, ex parte communication with the judge is virtually unknown as it is generally improper. Ex parte communication with the jury is professional misconduct. By contrast, success in mediation is usually the result of ex parte communication with the mediator.
In the years of my practice in mediation, I find this variation to be one of the most striking and simple aspects of mediation, yet it is often the most ignored. The mediator actually earns a paycheck by engaging in the very communications that are prohibited with a neutral in litigation.
A Unique Brand of Advocacy
This, in turn, calls for a unique brand of advocacy. The advocate must decide what to share with the mediator and what the mediator may share with the adversary, while remaining at all times credible and ethical. Much of the facilitated negotiation thus occurs behind the scenes as we rely on the mediator, who not only passes along our messages but also massages them as necessary to keep things going.
The confidentiality of mediation facilitates resolution. Because trial is a public and recorded proceeding, we are accountable. As trial counsel, we venture toward the edge of ethical conduct at our peril. If we overstate a position or misstate the facts, not only do we risk being called to task by our adversary, but we create a record for appeal and perhaps even a record that speaks poorly as to our own character and fitness.
In stark comparison, mediation is pretty much confidential from stem to stern. In a court-appointed mediation, the mediator is typically limited to reporting only whether the case has settled. See, e.g., Foxgate Homeowners’ Ass’n v. Bramalea Cal., Inc., 25 P.3d 1117 (Cal. 2001) (applying California Evidence Code sections 1119 and 1121 and striking mediator’s report of party’s conduct).
Rarely will counsel be sanctioned for conduct in mediation, as it is often improper to publicly air such grievances in the first place. Short of reporting bad faith, there is little else made known to a court after a mediation, beyond the outcome. For that reason, mediation calls on counsel to self-police. Nothing we say or do is likely to be known outside the proceeding—at least not officially.
Such a secret environment serves to facilitate resolution. Although parties seldom fully drop their game faces, the more candor the mediator can achieve, the better the prospects for success. Thus, this confidentiality is indispensable in providing a safe environment for the exchange of information.
Still, as lawyers, our reputation is our most precious commodity. The benefits of confidentiality notwithstanding, we nonetheless can destroy our reputation in mediation. Indeed, in my capacity as a mediator, I was recently given advance notice through the grapevine that I was about to deal with a notoriously difficult advocate.
In sum, the truth will out. An advocate cannot—and indeed should not—use a mediation as an iron curtain to shield improper conduct.
Mediation provides the opportunity to engage a true specialist with special expertise and experience. Generally, in civil litigation, the judge has no applicable specialized knowledge. Although there are some exceptions—bankruptcy, patents, and a host of administrative proceedings, for example—the trial judge is usually a generalist. Randomly assigned without any consideration of the nature or substance of the litigation, the judge is called upon to apply the law without any particular expertise in the unique law or technical facts in which the case is rooted.
By contrast, the parties agreeing to mediation may select a mediator with highly specialized expertise. There are two schools of thought. In my litigation practice in aviation law and insurance coverage, for example, I prefer to enlist a mediator who also has years of expertise in these areas. The obvious advantage is that we are spared the necessity of educating the mediator on the basics of a highly technical background of the dispute or particularly esoteric areas of the law.
If, on the other hand, the parties are willing or prefer to educate a mediator in new areas, subject-matter expertise need not be a prerequisite. A skilled mediator often may be able to facilitate settlements in new or novel practice areas and may even offer a fresh perspective. It is not uncommon for a mediator to build such a strong reputation for efforts, professionalism, and results as to become a go-to mediator across many practice areas.
Mediation is here to stay. Although we may be trained as traditional litigators, we must open a very different toolbox to mediate effectively, particularly in an emotionally charged claim. Our approach to mediation must be tempered not only by the strengths of our arguments but also by their impact on the parties. We are not there to win outright; instead, we are there to procure a settlement, certainty, and closure. Often, to do so, we need to make something of an ally of our adversary.
While in litigation we may indeed fight fire with fire, a mediating party may best be equipped with a dousing pail of water.