A Mediator’s Thoughts on Mediation
Published November 2, 2011
One day in 1999, I got a letter from former Judge Samuel B. Kent, appointing me as a mediator to a case in his court. Shortly after my appointment, the Fifth Circuit slapped Judge Kent’s hand (the big spank would come later) and told him he couldn’t mandate who would be the mediator on cases filed in his court. So much for Kent appointed mediations, but I was hooked on the process of mediating and wanted to learn more. First stop – Mediation School.
Mediation School teaches mediators that they should not dictate the end result and that the process evolves on its own. You are not to offer advice and whichever way the mediation wind blows, is where the settlement ends.
Unfortunately for the Mediator School, most attorneys do not want this type of mediation. They call this type of mediator a glorified message carrier.
Lawyers tell me that they hate it when a mediator tells them catch phrases like:
- A good mediation is one where all sides leave mad;
- Your case is terrible. Your client is no good. Your case is a loser;
- You might as well pay the other side because the jury is going to hate your client.
Mediators hate it when they hear statements such as:
- We are here because the Court ordered us to come, but we are not paying one dime;
- Money is not enough. The other side needs to admit they are horrible and I want you to cut off their right arm;
- I don’t want an opening session. Also, I want you to make sure we don’t run into the opposite side on the way to the bathroom.
Ok, I am exaggerating a little, but you get the point. In order to have a successful mediation, the mediator must be able to obtain rapport with the parties. The first step to gaining rapport is respect. Mediators must treat the parties with respect. The next step is getting the emotions out of the way. This is crucial, and is the part that makes or breaks the mediation. When emotions are high, good decisions come to a halt. As a highly emotional person, (thank you Grandma Cotropia), I know what it takes to combat emotions. Luckily this character flaw serves a good purpose when I mediate.
What should attorneys do to make their mediations more productive and successful? If you have certain issues, such as a difficult client, let the mediator know in advance. Even though it may be obvious, a quick heads up is helpful.
Another helpful hint is this: Don’t make an opening statement that attacks the opposite side. Your client may enjoy it, but it doesn’t help get your case settled. All an attack does is galvanize the other side and hastens the demise of any settlement. Don’t bring your trial game face to mediation!
Ditto for PowerPoints. Again, I have never seen a PowerPoint used successfully at mediation. Behind the scenes, the party without a PowerPoint is rolling their eyes at the side with the PowerPoint. PowerPoints are trial based and you are not in trial. Your goal at mediation is not to piss off (legal term) the other side. My goal is to get the emotions out of the room and see if there is a way for the parties to settle. Don’t smother that goal by raising your sword and hollering a battle cry.
Don’t skip the opening. Many lawyers want to skip the opening. This is a mistake. I insist on an opening even if it is nothing more than sitting down around the table and greeting the other side. There is just something about looking each other in the eye and acting cordial that helps cases settle. This very human exchange creates an atmosphere conducive for settlement.
There is a new concept in mediation called collaborative law. It is being used primarily in family law cases. In a collaborative mediation, all the parties and their attorneys stay in the same room. They never separate into different rooms. I was like most lawyers when I heard this and I thought, “No way!” But after being trained in collaborative law and in family law mediations, I see a need for it. Why? Because in some cases, the parties have to continue to deal with each other. They cannot go their separate ways after a case is concluded, like they do when someone has a car wreck and a personal injury lawsuit. In some cases, such as siblings fighting over Mom’s estate, there are good reasons to stay civil while working out a controversy. Nowhere is this more important than in family law cases where children are involved. Collaborative mediators have methods to honor each side and it doesn’t include slipping anti-anxiety pills in the party’s Diet Cokes. Rather, each side’s issues are discussed in a neutral manner. Each side is told they will have equal time to discuss their issues. The Collaborative Mediator keeps it positive so the parties can have a civil and positive outcome.