From experience in the practices of law and mediation, I’ve found several mistaken beliefs about disputes and their resolution. A small sampling follows.
Belief #1: A good mediator should advocate for the parties to settle their case.
As a mediator, I found that once I stopped advocating for settlement, many more of the cases I mediated ended up settling. When I stepped outside the advocate role, listened to the parties, stopped trying to control the outcome and promoted party self-determination, the parties’ trust of the mediation process increased.
Advocating for settlement is often met with an equal and opposing reaction from the mediation parties, who, when pressed, hold tighter to their narrative about the conflict. Parties tend to like to find their own solution, not be talked into it. Instead, the mediator – with the support of counsel – can help the parties to understand their options, including settlement options.
Belief #2 There is no need to consider mediation until suit is filed, the settlor of the trust has died, the contract has been breached, or the restrictive covenant has been violated.
Resolving conflicts before they accelerate into litigation helps parties get back to business and back to their families and lives. Often non-litigation counsel attempt resolution before a conflict is turned over to the litigator. Those attempts often fail. That may be because the same people and the same hardened perspectives are discussed and, not surprisingly met with the same result: stalemate.
If the conflict proceeds to suit, the allegations in the pleadings add an additional offense against the defendants that is another hurdle to be overcome in settlement negotiations. With party communication ceasing post suit, the parties assume the worst of one another and the conflict escalates further. If a neutral were introduced earlier, conflicts could be averted earlier.
Belief #3: Counsel’s declaration that “This is our final offer and we’re leaving if it is not accepted” should be believed.
Experience has taught me not to believe counsel in a mediation who give me “final offers.” The reason the statement is not believable include: Counsel does not know that his or her client will really walk away no matter what the counteroffer may be. People are unpredictable. What if they counter with a term close to the “final offer” with their “final offer?” Will the parties really walk away when the negotiation has brought them very close to resolution? What if the counteroffer terms take an alternate course altogether (i.e. something else of value like a contract for other business as opposed to cash settlement); will the client prefer the different course and want to counter to that? The final offer statement boxes the speaker into taking some dramatic step that they may not want to make when pressed – or risk losing credibility.
The same message can be conveyed with an instruction to the mediator to tell the other side that you are frustrated and very close to the end of the negotiation.
Belief #4 Cases won’t settle unless the mediator evaluates the parties’ cases.
Mediator evaluations can be problematic because once the mediator comes down on one side or the other, the losing party no longer sees the mediator as neutral and must negotiate from a position of weakness. The winner may take an overly strong position in negotiations with the formerly neutral party agreeing with the winner. This new strength may leave the loser in the evaluation in a more defensive posture, including defensive against the mediator.
Another practice is for the mediator to encourage counsel for each party in separate caucus to explain their strengths and weaknesses, commenting but not specifically opining, about the outcome.
Belief #5 Mediation will never work because this case will never settle.
Most parties that take their cases to mediation are skeptical that it will work. It is no wonder that surprise is a common reaction to settlement agreements in mediation. The vast majority of cases that mediate will settle either that day or soon thereafter.
Belief #6 Counsel should shut down personal, emotional and irrelevant comments by the client in mediation.
When parties tap into whatever emotion brought them into the case and talk about personal matters, the parties may be focusing on their underlying needs, objectives, fears and ambitions which motivate them. This attention to interests, as opposed to a party’s position, is a focus that may lead to settlement.
An interests-focused discussion can lead to developing options for mutually agreeable solutions – or not – if the parties are willing to alternate between listening to the explanation of the other side’s views and expressing their own.
Belief # 7 Litigators and mediators have the same set of skills
Many litigators are good mediators but not all litigation skills apply to mediating. For example, both litigators and mediators should be articulate. Both are able to sense good arguments from losers, and to have a general understanding of law, process and legal strategy. A litigator needs to be persuasive but need not be able to develop personal connections with people other than the litigator’s client. These trustworthy and people skills are key for a mediator. The mediator needs to understand both parties’ interests through patient listening and accepting (for purposes of understanding) their interests. The litigator needs to listen to understand the opponent’s strategy for purposes of countering it. The pairing of the litigator’s understanding of strengths and weaknesses of the case with the mediator’s perceptions is a match that can make the process hum. 925
Connie Rakowsky truly enjoys mediating any kind of dispute. She has the most experience in probate, and a variety of civil matters. She is a former shareholder of Orr & Reno, P.A. and Executive Director of LARC. Reprinted from the NH Bar News September 2018.