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ARTICLE

The Mediators Speak: How Honest Should You Be with Your Mediator?

Jeff Kichaven and Rachel K Ehrlich

Summary

  • Lawyers commonly face the challenge of clients with unrealistic expectations; mediators have fabulous tools to help lawyers meet these challenges.
  • If your negotiation counterparty is unaware of a weakness, why disclose it to your mediator?
  • Lawyers should not disclose their “top dollars” and “bottom lines” to mediators. Except when they should.
The Mediators Speak: How Honest Should You Be with Your Mediator?
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How honest should you be with your mediator?

At the risk of sounding lawyerly—it depends!

But since that’s how we lawyers answer just about every question, let’s ask a follow-up: It depends on what?

My answer: It depends on the subject of your candor.

Three subjects as to which lawyers often consider how honest they should be with their mediators are:

  • Their relationships with their clients;
  • The strengths and weaknesses of their cases; and
  • Their negotiation “top dollar” or “bottom line.”

Here are some general rules for each:

How honest should lawyers be with mediators about their relationships with their clients?

Pretty darn candid, if they want to get the most out of a mediation.

Lawyers commonly face the challenge of clients with unrealistic expectations. Mediators have fabulous tools to help lawyers meet these challenges and close deals which serve their clients’ interests. To make sure mediators use these tools, it helps if mediators know in advance that this challenge is on the agenda.

The best way for lawyers to alert mediators to this challenge is in a pre-mediation phone or video call. Can you imagine a lawyer writing, in a brief the client might see, about strains in the client relationship? I can’t.

This highlights the need for lawyers to talk with mediators after the submission of a mediation brief and before the day of the mediation. In those calls, I ask open-ended questions, such as:

  • What else do I need to know to be most helpful to you?
  •  What are your expectations of me?
  • What challenges do we face? And, perhaps most importantly,
  • Tell me about the personalities involved and your relationship with your client?

When we cover the basics and then get down to the personality and human factors, we’ve hit pay dirt. The stage is set for a successful mediation.

How honest should lawyers be with mediators about the strengths and weaknesses of their cases?

As candid as they have to be.

When it comes to the strengths of their cases, lawyers should be honest not only with the mediator, but with their negotiation counterparties as well. If you want to get credit in a negotiation for a great fact or argument, you can’t keep it to yourself! Consider this the next time you’re tempted to mark a mediation brief “confidential.”

When it comes to weaknesses, though, it’s more complicated.

If your negotiation counterparty is unaware of a weakness, why disclose it to your mediator? After all, there’s a greater-than-zero-percent chance your mediator might “leak” a secret to your counterparty, through facial expression, tone of voice or body language, if not through words. Indeed, in 28 years as a mediator, no lawyer has ever told me, “You know, there’s this smoking gun out there they haven’t discovered.”

Remember, though, your weaknesses are your counterparty’s strengths, and counterparties can surprise you by how much they know. So be prepared for whatever issues may arise.

How honest should lawyers be with mediators about “top dollars” and “bottom lines”?

Lawyers should not disclose their “top dollars” and “bottom lines” to mediators. Except when they should.

The reason for the general rule is straightforward. When you disclose your endgame number to the mediator, you generally deprive yourself of the opportunity to do better than that in your negotiation.

After all, if you tell your mediator that you are willing to settle for $X, what is the mediator’s incentive to work hard for you to get $X+5 if you are the plaintiff, or to pay $X-5 if you are the defendant?

And so, if a mediator asks a lawyer to disclose an endgame number, the lawyer should respectfully decline to answer. Or at least evade the question.

The conditions for the exception to the general rule are narrow. The classic situation is at day’s end, when the parties are close but not quite to a deal. One side, often an insured defendant, has gleaned information at the mediation to convince it that it needs more authority. The defense representatives at the mediation must call someone back at the ranch to get it.

At that point, the plaintiff’s side will generally be asked what it will really take to get the deal done, and it generally behooves the plaintiff’s side to answer honestly. Dollars don’t come easily out of the defense coffers at that point, and if a plaintiff overplays its hand, it risks jeopardizing a deal it would have accepted.

And those are my honest views on how honest you should be with your mediator.

Rachel Ehrlich

You can be as candid as you want to be with your mediator. Lack of candor with your mediator can prevent settlement or stymie progress in the resolution conversation. People often think that being candid with the mediator means telling the mediator their true bottom line—most of the time this mediator doesn’t find that sort of honesty helpful unless it comes late in the process and is preceded by robust discussion that will help in understanding why that is the bottom line.

Helpful candor is giving information to your mediator by:

  • Providing mediator’s eyes-only written submissions that supplement what you have shared with the other side (and sharing with the other side is important);
  • Inviting your mediator into your room’s thinking that by including your mediator in discussion of how you might respond to another party’s position or offer, and why, you and your client are considering those responses;
  •  Party principal or insurer representative discussion with the mediator about the party’s thinking and concerns.

Too often, mediators are turned into carrier pigeons, just carrying numbers back and forth sometimes with no insight into the “why” of the numbers. When you are not candid with your mediator the mediator has far less with which to work.

There are two interesting, anti-candor-related, things that sometimes happen in mediation:

  • Only counsel speaks. Even when party or insurer representatives have questions, they privately message counsel or they wait until the mediator is out of the room. The questions are then discussed, the mediator is invited back into the room, counsel asks the question(s), and discusses the issue(s) with the mediator. Sometimes the mediator is asked to leave the room again and the process happens several times.
  • Discussions with the mediator are inquiry only. “What did they say?” “What are they thinking?” “What do you recommend?” In other words, none of the room’s thinking is discussed with the mediator.

As you may have discerned from these two stark examples, both are the antithesis of candor. In this mediator’s experience, the unilateral nature of these tactics and the corresponding lack of reciprocity towards the other side tend to diminish the likelihood of progress during the mediation session.

Be conscious. Experiment. Notice what you get from the mediation process when you are more or less candid with the mediator. You can even tell the mediator if you’re going against your normal approach. And the next time you see me or Jeff Kichaven, tell us about your experiences with candor in mediation.

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