As counsel, you have represented clients in hundreds of mediations. You have taken courses in the art (it certainly is not science) of mediation. Perhaps you even have served as a mediator. In your role as an advocate, you know the importance of being able to think like your opponent and to anticipate the reaction, response, next reaction and response and so on. Applying a layperson’s understanding of physics – every action will have an opposite reaction (it may or may not be equal but there will be a reaction).
A mediator is placed between the action and reaction – sometimes leading, sometimes following. By thinking about the physics of a mediation and your role in it, you have the ability to maximize the opportunity to use the mediator to assist in reaching a resolution. The key, however, is to understand (and anticipate) the mediator, as well as the other party in the process.
Listed below are one mediator’s pleas(e) for counsel to most efficiently use the mediator and mediation to achieve a resolution.
Pleas(e) #1: Consider the attitudinal setting of the mediation – confrontational versus conciliatory. Notwithstanding each party’s belief (at least as expressed to a client) that it has strong, winning arguments, the reality is that the other party also has arguments. Indeed, the opposing party likely has precisely the same view of the case.
Because the opposing party probably has highly competent counsel and confidence in its position, the likelihood of a settlement-inducing response from the other party to table pounding and bombast is something less than zero. The reality is that a party almost never “caves” in response to a table pounding presentation. More likely, the presenting party will guarantee immediate resistance to settlement and engagement in re-evaluation of one’s positions and the process of mediation. While such resistance is not necessarily fatal to reaching a resolution, at a minimum it does prolong the mediation in terms of time and cost to the clients.
Please appreciate the difference between a conciliatory attitude and the chance of conciliation being viewed as a lack of confidence and fear of going to trial most assuredly are in the less than zero category. If a client does not appreciate the attitudinal issues for mediation purposes, consider a pre-mediation phone call or meeting with the mediator. Let the mediator be the message carrier about the importance of attitude in mediation.
One can be conciliatory in tone, word choice and subjects chosen for discussion in ways that do not suggest weakness. Pleas(e) – consider an even toned “matter of fact” presentation of facts and legal positions. Pleas(e) be sensitive to the persons sitting across the table from the presenting party. If the alleged “wrongdoer” or the writer of the contract on which the dispute is based is sitting at the table, be sensitive to their presence and make remarks that are factual “if we need to go forward, it may/will be necessary to prove ….” Accusatory statements have no place at a joint session if one wants to make the mediation as productive as possible in the shortest amount of time. Even in the absence of a sudden “you’re right” response, such a presentation initiates and fosters an attitude and environment for compromise.