Seven Habits of Ineffective Advocates in Mediation
By Francis Carling
Employment and Labor Relations Committee Newsletter, Litigation Section
American Bar Association
Assume that, as a young lawyer, you are preparing to represent a client in your first mediation. Assume, too, that all that is at stake in the case is money: both parties would prefer to settle, but the plaintiff wants every penny he can get, and the defendant does not want to pay one penny more than is necessary. Here are seven common pitfalls you should avoid in your preparation and conduct of the mediation.
1. Expecting to win. No plaintiff should go into mediation expecting the defendant to surrender and admit he did wrong. No defendant should expect the plaintiff to capitulate and concede the case was frivolous. If either side had a slam-dunk claim or defense, they would be moving for summary judgment, not spending hours cooped up with a mediator. The goal of mediation is settlement — which means both parties must give up idle dreams of victory, and come to mediation ready to compromise.
2. Failing to prepare. Compromise can be painful, and you haven't done your job if you haven't prepared your client for it. Preparing for mediation is not nearly as hard as preparing for trial — indeed, that is one of mediation's advantages — but too often parties seem to show up for mediation with no clear strategy in mind. Waiting to see what the mediator comes up with, and only then starting to think carefully about settlement options, can scuttle the mediation or produce a bad result. Know your settlement parameters in advance.
3. Treating the mediator like a judge. It's not a mediator's job to decide the merits of the case. Indeed, generally we don't really care about the merits, except to the extent they bear on the reasonableness of the parties' settlement postures. Tell the mediator why your client's approach to settlement makes economic sense; don't waste your breath trying to persuade him that you'll win if the case goes to trial. The mediator assumes the case will never go to trial (if he does his job right), and what he wants from you are practical suggestions for compromise, not oral argument on a summary judgment motion.
4. Lying excessively. Much as we might wish otherwise, mediators don't expect complete candor from parties. A negotiation without bluffing is a rare experience. On the other hand, a mediator can be most effective when he has a reasonably accurate idea of where each party is heading: with that in mind, he can put all his skill into bridging the gap. Making wildly unrealistic, and untrue, claims about your client's inability to compromise just wastes time, and may cause the mediation to fail needlessly.
5. Killing the messenger. One of a mediator's functions is to convey messages from one party to the other. A results-oriented mediator will sometimes twist arms, and even browbeat parties, to get the job done. That a mediator presents the other side's arguments articulately doesn't mean that he agrees with them. That he pressures your side to be more flexible doesn't mean that he isn't being just as hard on the other side. Let the mediator do the job you're paying him for, and recognize that his only loyalty is to getting that job done. Don't personalize the process vis-à-vis the mediator himself: it's not personal, it's just business.
6. Looking to the mediator for the right number. Ideally, the settlement you reach in mediation should be the same settlement you would eventually have reached on your own with your adversary — only, it should come much faster and cheaper. While creativity is an asset in a mediator, basically he is there to facilitate the process, not to tell you what the settlement should be. To be sure, there are situations in which the advocates, in the end, may feel they need the mediator to suggest a number — particularly, when they think the number would be more acceptable to their clients coming from a neutral than from them — and a good mediator should be prepared to oblige. But it is a mistake to come into a mediation expecting the mediator to do the parties' work for them. When all is said and done, it is only the plaintiff who can decide what he will take, and only the defendant who can decide what he will pay.
7. Disrespecting confidentiality. Confidentiality is the bedrock of mediation. For the process to be effective, the parties must feel sure that they can confide in the mediator without fear that he will make unauthorized disclosures to the other side. At the same time, they must feel free to take positions on the facts and law that won't be thrown back in their faces in court if the mediation fails. I can't stop parties from taking notes in a mediation, but I often ask why they bother: other than writing down numbers so they won't be forgotten, there is no point in making notes if the parties intend to keep their pledge to ignore what happened in the mediation if it fails to produce a settlement. The purpose of mediation is singular: it is to produce a settlement. Its purpose is not to provide discovery, provoke concessions, prompt revelations, or commit the parties to fixed positions. If, with maximum effort and good faith on all sides, the case does not settle, so be it. Forget that the mediation ever happened, and move on.