Introduction. Having had my share of bad mediators over the years, I cannot resist this Q-Rant.
There is a reason mediators are also called “Neutrals” – they’re supposd to be “neutral.” Neutrality is a pretty basic concept; it goes back centuries. Words such as “impartial” and “unbiased” come to mind. Think of Switzerland during World War II.
While being a “neutral” may appear to be a fairly straightforward role, it can become problematic when undertaken by attorneys. Who ever thought they would make good mediators, anyway? While they may know the law, and understand how it applies to a particular dispute, many attorneys’ stock-in-trade is advocacy, and they are constitutionally incapable of shaking that role. Being a “neutral” requires attorneys to metaphorically take off one hat – say, that of the gunslinger – and put on another – say, that of the peacemaker. While attorney/mediators may begin the mediation with the best of intentions, there is a risk that at some point in the process, they will lapse into what they were trained to do, i.e., becoming an advocate.
The Process. Most mediations are conducted in a manner whereby the adversaries are never in the same physical room. Rather, the mediator confers with each side in their own room, shuttling back and forth during negotiations. For remote mediations, everyone has virtual rooms, using Zoom, Google Meet, or a similar app. In most cases the parties’ attorneys have – or should have – explained this process in advance with their respective clients. Each attorney should prepare a written submission to the mediator, explaining the factual background of the dispute, the issues, and the law. Since it is confidential and not shared with the other side (unless authorized), it may be appropriate for the attorney to address – in advance – weaknesses in their case, i.e., making concessions so the mediator knows that certain facts will not be disputed. (This is not to say the mediator is authorized to relay these concession to the other side. Attorneys should clarify with the mediator in advance, what information is to be shared with the other side and what is not. Good mediators will pick up on these issues and ask in advance.)
The upshot of this separation of parties means they are never allowed to interact; the mediator never speaks to both sides at the same time (except perhaps at the start for introductions).
Although it can occur, a party should never participate in a mediation without using an attorney. Why? Because the attorney’s presence makes the mediator’s job easier. Otherwise, the unrepresented party will likely not know or understand the process, the ground rules, or proper protocol. The undrepresented party has no one to confer with during the mediation about the strength of their case, the other side’s case, or the reasonableness of any terms of settlement. And the mediator can – and should – demur when asked to “advise” the unrepresented party about what to do. Some mediators even decline to participate in mediations where the parties are unrepresented.
The mediator will not disclose conversations held with the other side, unless expressly authorized in advance. For better or worse, this means that neither side knows what the mediator discussed with the other party. The mediator only discloses to a party what the other side authorized. When discussions get down to specifics, i.e., the payment of money or performance of certain obligations, the mediator obtains specific authority to relay offers and counteroffers. If the process proceeds as it should, the specifics of settlement become narrower and narrower, until the differences are compromised.
At the very end, a “Material Terms” sheet is prepared by the mediator – usually a page or less – which outlines the basic elements of the settlement. Once finalized it should be signed by the parties before the mediation is concluded. This is done with the understanding that a more formal agreement will be drafted with the standard recitals and boilerplate clauses attorneys are fond of inserting. If a dispute arises before the final agreement is signed, the Material Terms sheet will apply. Typically it will provide that if there is a dispute over the settlement, the mediator has the last word; their decision is final, binding, and non-appealable.
Measuring Success of a Mediation. Some mediators keep a mental (and perhaps physical) list of “wins” and “losses.” The settled cases go under the “W” column and the unsettled ones are relegated to the “L” column. This scorecard can become more important to the mediator than the process that preceded it. This can lead to short-cuts. In other words, the mediator’s focus can move from assisting the parties to collaboratively reach their settlement to arm-twisting, trying to convincing one side (or both sides) they will lose. If this occurs, the mediator is not doing their job – in my opinion. Rather than assisting the parties in reaching a mutual settlement, the mediator has sought to force a resolution using fear. The mediator may have secured a “Win” but at what cost to the parties and perhaps their attorneys?
Remember, the disputants hired lawyers and filed their claims likely because they believed the facts and law were on their side. At least that may be what their attorneys told them. (The smart attorney should always temper his/her advice with a dose of reality, describing both the good and the bad aspects of the case. Avoid superlatives when describing outcomes; don’t forget the doomsday scenario! Frequently, these admonitions need to be repeated more than once, and often in writing.)
Consider this: How is a party going to feel when the mediator tells them that they have a bad case and are going to lose? They may settle out of fear of a catastrophic loss – but when the process is over, it now falls to their attorney to explain why the mediator viewed their case so critically. Was their something the attorney failed to discuss/disclose with his or her client? In these cases, where the mediator negatively evaluates a party’s case in the presence of their own attorney, the client will – sooner or later – begin to doubt their counsel’s advice. In these situations, you can be sure the attorney will likely never select that mediator again – and rightfully so. Does this mean the mediator cannot have an honest discussion of the good and bad aspects of the case in the presense of both attorney and client? No. Read below.
The Bad Lawyer-Mediator. This is the lawyer-mediator who views the facts and law of the case as subordinate to getting the case settled. He or she believes they can convince one or both of the parties to put aside their (heretofore) strongly-held beliefs, and “just settle the case and move on.” A mediator with this mind-set is ill-prepared to actually discuss the merits of the case or applicable law. This is because the mediator did not spend enough time in reviewing the case at the start. As a result, after a few hours have passed in the mediation, patience is wearing thin; the lawyer-mediator may cease being a “neutral,” and morph into an advocate – perhaps even telling both sides (separately), that they will lose if they don’t settle now. That is the easy way out for the mediator and a disservice to the parties who have paid – in advance – for this service.
What Makes A Good Mediator? The same thing that makes a good doctor, “Bedside Manner.” Unwelcome news can be delivered in different ways. The good mediator will get the recalcitrant party (or parties) to the settlement table using honey rather than vinegar. While it is axiomatic that settlements may leave both parties unhappy about some aspect of the result, the ultimate goal should be that they experience a sense of relief in knowing that the process allowed them to fully evaluate the case and potential outcome; the result was the best they could do. This is far preferable than a settlement resulting in regret and recrimination.
A good mediator should first become thoroughly familiar with the case; requiring written submissions and following up with each party’s attorney in advance if there are questions. Mediators should ask each party and their attorneys to describe the “weak” or “negative” aspects of their case – both the facts and law. This forces them to honestly confront the flaws in their case. (Remember, there is no such thing as a “perfect case.” If it were perfect, it would have settled without the need for mediation.)
If the parties or their attorneys engage in obfuscation rather than evaluation, the mediator should ask the tough questions: “How do you deal with Fact X or Case Y?” This approach is far better than telling one or both of the parties and their attorneys that they have a bad case. (Such a conclusion is, at best, conjecture by a person who has spent far less time, effort, and analysis on the matter than the parties and their attorneys.)
The one reality mediators can and should truthfully communicate to the parties is that final outcomes can oftentimes be surprising and/or disappointing. In a word, there is risk in not settling now. This is because the final decision-maker, judge, arbitrator, or jury, may have a completely different view of the case – because they are human.
Many mediators frequently ask each attorney in front of their client what they estimate the total costs and legal fees will be if the case goes all the way through trial or arbitration. Since many cases carry a right to prevailing attorney fees, this reality check can have a sobering effect on the participants. (If the attorneys have not already had this discussion with their respective clients, they should have.)
In summary, the main attribute – nay, “skill” – of all good mediators is that they follow (intentionally or otherwise) a Socratic approach to the process. This means the important issues, facts, and laws, are explored by the mediator asking the parties and their attorneys material questions. This exercise allows for a collaborative and honest discussion about the strengths and weaknesses of the case, with an eye toward how best to resolve differences and settle the dispute. This is far better than the mediator telling a party or their attorney that they are “wrong.”
Ultimately, most mediations will result in each party having to address certain negative realities: E.g., (a) That one side will have to pay more money than they originally wanted; or (b) The other side will likely have to accept less money than they originally expected; or (c) the losing party could get tagged for having to pay the other side’s attorney fees as well as their own. A good mediator can have these discussions with the parties and attorneys, allowing both sides to complete the process with equal dignity.
An ancient maxim in The Art of Worldly Wisdom, (1647) by Baltasar Gracián is still instructive today:
Chapter XXV Know how to play the Card of Truth. ’Tis dangerous, yet a good man cannot avoid speaking it. But great skill is needed here: the most expert doctors of the soul pay great attention to the means of sweetening the pill of truth. For when it deals with the destroying of illusion it [can be] the quintessence of bitterness. A pleasant manner has here an opportunity for a display of skill ****
– Phil
