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ARTICLE

The Mediators Speak: Force in Mediation

Jeff Kichaven and Rachel K Ehrlich

Summary

  • Without the give-and-take of bargaining, without some direct interaction with the other side, how can you know you’ve gotten a good deal?
  • The best mediators are collaborative, not authoritarian.
  • When mediators and lawyers each play their proper role, clients can make clear, strong decisions in a calm, informed environment.
The Mediators Speak: Force in Mediation
Jose Luis Pelaez Inc via Getty Images

Jeff Kichaven

The use of force in mediation is dangerous. When a mediator forces a settlement, backlash can come in the form of client resentment. Days, weeks, or even months later, a client may complain to a lawyer, “You failed to protect me from the mediator. How could you have let me pay so much/take so little?”

No lawyer wants to hear this. It creates a risk the client won’t return, won’t refer others, won’t pay the bill. It also lessens the chance the lawyer will come back to that mediator. Yet calls for “forceful” mediators persist. Here’s my take on why this happens, and what to do about it.

Forceful mediators, and the lawyers who demand them, generally view settlement, any settlement, as the sine qua non of success in mediation. If it can be achieved quickly, all the better. Client satisfaction takes a back seat.

This leads to two species of mediator conduct, one easily marked as counter-productively “forceful,” the other not as easily, though equally malign.

The first, openly aggressive, is the finger-wagging scold, often dropping f-bombs, telling you your case is lousy and you’ll be lucky to get out of the mediation alive. If you can keep your cool, it’s relatively easy to deal with this mediator. When the mediator leaves the room, you tell your client that the mediator says that to everybody, and you get about your business.

The second, passive-aggressive, is a wolf in sheep’s clothing, and more challenging to counter. This is the mediator who listens calmly, doesn’t allow much bargaining, and relatively early on pops a “mediator’s proposal” on you without notice.

Why is the passive-aggressive mediator so dangerous?

First, as we all know, if the mediator’s proposal fails, it’s hard to resuscitate negotiation. If one side accepted and the other declined, the accepting side imbues the proposal with the mediator’s imprimatur and becomes stubborn about further concessions. If both sides declined, you are at impasse.

Second, and worse, your client may look at the mediator’s proposal and ask you, “Is this really the best we can do? How do we know?” Without the give-and-take of bargaining, without some direct interaction with the other side, how can you know? You are left with trust in the mediator – a mediator who does not share your fiduciary obligations to your client, who may perceive the other side as a more important source of business, or who may be tilting against you because the mediator perceives you as more reasonable, malleable, or eager to settle.

How to protect yourself and your client? An ounce of prevention is still worth a pound of cure, so ask around before you hire a mediator. Make sure the mediator is known to provide the type of service you demand. Then insist on boundaries. To the openly aggressive mediator, insist on civility. To the passive-aggressive mediator, insist on no short-circuiting of the bargaining process, no isolation of the sides from each other, no mediator’s proposals without warning or without some consultation as to what the proposal will be.

As lawyers, you can constrain a mediator’s use of force to its proper role: The force of logic. Mediators have opinions and evaluations, fresh perspectives and insights that can benefit you. Take advantage of what a mediator has to say. The best mediators are not potted plants! We can and should do much more than shuttle raw numbers back and forth. When mediators speak with the right mix of candor and tact, that’s strength, not force.

But you, as lawyers, must not be potted plants, either. As I have often said, one key difference between “good” and “bad” mediation is that in good mediation, mediators help lawyers do the best job they can negotiating for their clients. In bad mediation, mediators hijack the lawyers’ roles and negotiate for them.

The best mediators are collaborative, not authoritarian. When mediators and lawyers each play their proper role, clients can make clear, strong decisions in a calm, informed environment. Settlements are the natural by-product of this process. That’s good mediation.

 

Rachel Ehrlich:

“FORCE them to move!” “FORCE them to see …!” “FORCE them to settle!”

These requests made of mediators come from frustration that the other side is not doing what a party wants. Mediation is a voluntary process and mediators do not have coercive power that people are asking be used. In fact, the very confidentiality of mediation that so many people prize makes it less coercive than similar processes, such as court-connected settlement conferences. Nevertheless, the demand that a mediator use force is made frequently.

Key for those who want a mediator to “use force” is to be clear on the outcome they think force will yield. This does not mean that the mediator will do things exactly as the party is envisioning. “Go beat up on the other side.” Alright, provide good information with which to “beat them up.” Force in mediation without back up is just bullying. Bullying is not force. True bullying involves coercive power (whether physical, psychological, or social) and since mediation is voluntary there is no true coercive power invested in the mediator. Bullying by a mediator is really just badgering. Knowing that the mediator is badgering the other side does make the side that is requesting force be used believe the process is working as it should even though it is not likely to yield the desired outcome. Instead, force of this fashion typically stalls negotiations.

Thinking differently about “force” as “a force for good” can be helpful in figuring out how to articulate the outcome a party seeks when they summarily asking that “force” be used. By fully describing the desired outcome the discourse can move the case toward resolution because the mediation process can build momentum. Force in this way is, oddly, collaborative with the other side with the mediator’s assistance. It takes the effort being exerted both sides to slightly change their own positions that then allows force to transform the negotiations.

It takes input, effort, by parties to build momentum and a different mindset than one of pure combat. Mediators work with parties to move their forceful inclinations toward resolution without entirely giving up combat. This is when a force for good gets the case over the decision finish line, whether that is settlement, trial, or even appeal.

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