A gentle answer turns away wrath, but a harsh word stirs up anger.

- Proverbs 15:1

For More Information

Name

“I Know What Your Job Is!” – Reframing the Role of Mediator

Party Expectations as Barrier

Expectations are resentments under construction.

Misguided, hostile or uninformed participant expectations about mediation and the role of the mediator can be significant barriers to resolution. To assist participants in getting the most out of the process as well as a satisfactory experience, it is crucial that we acknowledge and address their expectations. An essential element of my practice is scheduling an introductory ex parte meeting with each party and their counsel the morning of mediation. In addition to “getting acquainted,” I routinely explore their experience with mediation, their understanding of the process, and what they expect from me.

Most participants reply, “Your job is to help us find a way to resolve our differences and settle the case.” Not bad. Occasionally, however, a party will say, “I know what your job is! Your job is to convince me to [take/pay][ less/more] than my case is worth!” Uh oh! These parties distrust the mediator or the process and fail to appreciate mediation’s unique opportunity to learn. They filter anything said by the mediator or the other side through a prism of skepticism, disbelief, and hostility. I’ve heard it from plaintiffs and defendants alike. I’ve heard it early in the day; I’ve heard it late. I’ve heard it from “newbies,” and I’ve heard it from long time claims managers. Hostile expectations present significant obstacles to resolution and must be reframed if progress is to be made.

Resolution requires a level of trust. Many parties arrive at mediation distrusting one another and resist efforts to build or re-establish any. Trust in the mediator and the mediator’s process therefore become critical to success. Skepticism about our role at the mediation table is unhelpful and corrosive. Skeptics don’t listen. They don’t learn. They push back. They deflect. They resist our techniques. They hunker down, inflexible and unmoving. They undervalue our reality testing and risk assessment questions. Unaddressed, a perception we are working against their best interests prevents conflict resolution. Unaddressed, suspicion of our motives, lack of trust in our process, a sense we care only about forcing resolution on unsatisfactory terms, undermines everything we seek to accomplish. [1]

Do the skeptics have it right? Is our job to guide parties to a resolution somewhere in between no matter what? Churchill famously said the best settlements are those from which both sides walk away equally unhappy. Is that what we’re after? It is certainly true that cases almost always settle somewhere between the opening offer and counter-offer. If this is our “job”, it is not irrational for parties to brush off our toughest questions, minimize our reality testing techniques, and scoff at our efforts to establish the potential costs and collateral consequences of non-agreement. Middle ground is often the end result of what we do. I suggest, however, that the proper frame for understanding our role is very different. In this paper I will suggest that we address party expectations directly, and offer as replacement a productive, trustworthy reframing for parties to consider.

Redefining the Role of Mediator: Assistance in Exercising Good Judgment

Let’s start with how we define our role as mediators. Do we share the same definition as parties and counsel? Are we satisfied with “helping the parties find a way to resolve their differences”? Perhaps. To me, helping parties find a way to resolve their differences is the net result of what we do, not the roles we play in the process. The truth is we do not play a single role. We play many. [2] To me, the list of roles does not include persuading plaintiff to take less than desired or defendant to pay more than the claim is worth. Let me suggest an alternative framing of the role I learned recently and now embrace enthusiastically. [3]

“No,” I say to the skeptics, “That’s not how I see my job. I see my job as helping you make the best decision possible about resolution of your dispute. This is your case. Your life. Your business. Mediation is entirely voluntary. You decide. No one can exercise good judgment and make a good decision without all the information available. My job is to bring you that information including, among other things, the story the other side intends to present, the perspective they bring to the table, the strengths and weaknesses of the claims and defenses, the magnitude of the risks presented, the legal landscape, and the costs, both economic and non-economic, if the dispute does not settle today. Whether you settle and on what terms is totally up to you. Once you have all the information, with input and advice from your lawyer, I’m confident you will make the best decision possible.” That’s how I frame our role as mediators. That is the proper way to view our role in the process. That transforms the skeptic from resister to joint problem solver.

I recently mediated a suit between family members over a lakefront cottage which had been in the family many, many years. Both lawyers agreed partition was impracticable and that the court would order the property sold. Mediation presented an opportunity to retain the cottage in the family if one faction purchased the half interest of the other. There were hard feelings. No trust. Anger and resentment. “Is your goal to get one of us to buy at the lowest possible price?” one of the cousins asked, her face drawn with worry and consternation. “Not at all,” I replied. She wasn’t convinced. She was skeptical. Of course I would deny what she thought obvious. She did not believe me. When I gave my frame on the mediator’s role, however, I could almost see a light bulb turning on over her head. She visibly relaxed. She smiled. She engaged. An agreement was reached in the second round! Reframing the role of mediator as a neutral, objective third party motivated to help them exercise their best judgment is powerful.

Mediator as Educator

Education is an essential element of our job. First, we educate the parties and their counsel to achieve a better understanding of the process. Mediation is an opportunity to step back from the fray, climb up to the balcony, and look for a way to reach an amicable accord. If a party goal, mediation is an opportunity to repair relationships, establish effective channels of communication. It is not just another stop on the litigation express. As educators, we help parties see how they can reduce costs and seek maximum mutual benefit. Mediation is the one place where they can communicate directly with one another, take a step back and assess their best and worst alternatives to a negotiated agreement, determine if resolution might better meet their underlying needs and interests, and make judgments about whether the economic costs and potential collateral consequences are worth the risk.

Second, we educate about what lies ahead in discovery or trial if the dispute doesn’t settle. We assist each party in hearing and considering the other side’s story; not to accept it as truth. That’s rarely going to happen. Each party has its own view about what transpired and they’re likely to stick to it. We ask only that the alternative story be considered. We ask, “Is it plausible? What is the risk the court or fact finder will believe it?” When parties express confidence that the truth will emerge to expose the liars on the other side, Mediator’s ask their advocates, “How often does that happen?” Rarely, as it turns out.

Even if the conflict doesn’t resolve, if participants listen carefully, they will learn the other side’s perspective, better appreciate and assess their own strengths and weaknesses, and discover what it will take to reach agreement. Information has value. Experienced mediators help parties find that value through education.

Mediator as Host

Typically, we convene the mediation at an agreed upon venue. As my office is virtual, I usually mediate in the offices of one of the lawyers. If a “neutral” location is required, I have a relationship with a court reporting firm permitting use of their conference rooms. Whatever the venue, a good host insures ample supplies of coffee and beverages, easily available rest rooms, and space for private and confidential meetings as needed. Arbitrator Don Sugarman taught me years ago that the role of host includes bringing bagels and cream cheese and fresh fruit in the morning. This facilitates working through lunch. Lunch breaks can derail progress toward resolution. If the parties prefer a lunch break, the mediator is a source of information about ordering in or nearby restaurants. After lunch, I break out cookies, chocolate and a salty snack. My grandmother taught me, “food is love.” It’s the grand oral equation! If the parties break bread together, the chances of a successful resolution increase.

Mediator as Interpreter and Translator

In the film “Cool Hand Luke,” Strother Martin famously tells Paul Newman, whom he has just beaten to a pulp, “What we got here is failure to communicate.” Sometimes, a failure to communicate is the cause of conflict. In such cases, the mediator’s role is to make certain the parties have heard and understood each other. In some disputes, communication is hampered by zealous advocacy, competitive personalities, or provocative “fighting” words. The adversarial process itself can undermine the likelihood one side will listen to the other. In these cases, the mediator’s role is to interpret messages, translate words, or neutralize the inflammatory rhetoric so that important issues will be considered and assessed in their proper light. Accusations of lying, for example, generally aggravate conflict. Reframing can lead to better understanding: “They have serious questions about credibility and here’s why….” The language of diplomacy, elevating the discussion a notch or two, reframing, and inviting participants “up to the balcony” to look down on the big picture are all tools in the mediators array of techniques.

Mediator as Information Exchanger

Good settlements generally require the exercise of good judgment by the parties. Will Rogers taught us that good judgment comes from experience - and experience comes from bad judgment. What are the ingredients for exercising good judgment? One ingredient is information. Most people are not ready to resolve their dispute unless and until they have all the information available to consider and process. This may involve learning all the facts – as proposed by both sides, the legal framework and past precedent, the likely evidence – together with an assessment of the admissibility of that evidence, the quality of witnesses, the plausibility of the stories told by each, the inclinations and track record of the trial court, the certainty of the damages and losses, the experience and talent of the litigators, the nature and make-up of the jury pool, a realistic understanding of the risks, a hard eyed assessment of costs and attorney fees; and more! A reasoned top or bottom line assessment of settlement value results from a careful analysis of all these factors refined and uncovered during the mediation process.

The mediator’s job is to manage the transfer and exchange of as much information as possible. The exchange of information is particularly important should the parties be unready or unwilling to settle. There is great value in the mediation process if the parties come away knowing each other’s numbers, having a better understanding and appreciation of the risks, the facts, the costs and the other side’s perspective with which they will contend going forward.

Understanding and considering the other side’s perspective is often an undervalued aspect of the mediation process. In a commercial case I mediated, the defendants were escalated, challenging the good faith of the plaintiff. Defendant’s president groused, “They didn’t come here to settle!” Well, I pointed out, the CEO, the head of human resources, the general counsel, the chief financial officer and the chief operating officer all flew in for the day. Plaintiff spent thousands of dollars on plane fare and hotel accommodations. I couldn’t even begin to calculate the lost opportunity costs of an all-day mediation demanding the attention of the plaintiff’s entire top management team. “They could have sent a human resource person. They could have sent their general counsel alone. The officers came. All of them. What does that tell you about whether they are here in bad faith?” Why would they do that, I asked, unless motivated to engage in the process? Recognition that the other side was taking the dispute seriously and treating it with respect was a game changer. The case settled.

Mediator as Guide to Needs and Interests

Most parties and their advocates are trained in positional or distributive bargaining. They rarely think about, consider or identify the underlying needs and interests driving the dispute. Accordingly, another mediator job is to assist the parties in identifying their own needs and interests and trying to read those influencing the stance of their adversaries. When needs and interests are identified and examined, the parties may be better able to formulate proposals that are attractive and positive. For example, in a non-solicitation case, defendant former employee resigned to start his own business, inviting current clients to leave with him in violation of his employment contract. Plaintiff sued for injunctive relief and damages. The plaintiff’s CEO, whose business was highly successful and lucrative, did not actually care whether he recovered any money. Plaintiff cared about an office full of current employees observing whether defendant got away with disregarding the same non-solicitation agreement they signed. Defendant, whose business venture had not succeeded, was interested in moving on with life and ending expensive legal representation. He was more than willing to acknowledge the validity of his contract to avoid further litigation. Without exploring underlying needs and interests, resolution might not have been possible.

Mediator as Negotiation Coach

When the mediation process is boiled down to its least common denominator, it is nothing more than an assisted negotiation. The mediator, neutral, unbiased and objective, is there to assist the parties in better understanding each other, removing obstacles to understanding, and communicating in constructive ways. A major complaint expressed by litigators is the mediator who does little more than carry messages and offers back and forth between the parties without any input or comment. This is understandable. A simple messenger adds little value to the process. Experienced lawyers know how to pick up the phone and convey offers and counter offers themselves. They don’t need a mediator billing hundreds of dollars per hour to do it for them at the mediation table.

One of the most valuable roles a mediator can serve is negotiation coach. Mediators are well equipped to assist the participants in formulating proposals, developing the rationale to explain them, and putting them forward in constructive fashion. Regrettably – perhaps because mediation has become so popular – many fine lawyers seem to have forgotten how to negotiate. Mediator assistance, therefore, can be crucial to arriving at one side’s bottom line, the other side’s top. First, the mediator is the only participant at the table who has been in all rooms repeatedly throughout the day. An experienced mediator takes the “temperature” of each room. An experienced mediator hears and understands what is important to the participants. An experienced mediator recognizes what will and will not be welcome. As a result, the mediator can offer insight into how to frame an offer most persuasively. [4]

Second, mediators are often skilled and experienced negotiators themselves. They recognize the importance of putting together a verbal message to justify each demand and counter-offer. They understand that dollar figures are such loud messages in and of themselves that wrapping a proposal in text provides a solid foundation for a more robust and businesslike exchange. Articulating the rationale for a proposal avoids an unproductive exchange about “my gut” versus “your gut.” Based on past experience and observation, mediators are in a position to provide suggestions about what may or may not work. If the goal is to solicit a counter-proposal, mediators can explore what is most likely to accomplish that. [5]

An important aspect of negotiation coaching is to ask questions. How will the other side react to that number? What do you think they are expecting to hear from you in this round? What message will they read into this number? As progress is more likely to result from a reasoned proposal than from a “gut” proposal, what is the rationale you want to provide? Is there a better number you can work with and still leave yourself room to move? Will this proposal keep the process in motion? What is the risk a party will leave the table? Is there a more constructive way to frame the proposal? How can we frame this to better meet their needs and interests?

Far too often attorneys want to open the negotiation with numbers that simply antagonize the other side, leading to retaliation, impasse or withdrawal from the process. Managing opening offers, therefore, is one of the most important challenges of negotiation coaching. “Why am I making a ridiculous offer?” they ask. “Because they need to understand that …!” You can fill in the rest. Whatever the litigator wants the other side to understand, an unrealistic proposal only precipitates an equally unrealistic counter. Lawyers are competitive. They act reciprocally. Indeed, unrealistic numbers cause the receiver to conclude the offeror is neither serious nor operating from good faith. Regardless of the message intended, that’s the message received.

Mediator as Risk Assessor and Agent of Reality

We’ve all seen it: Advocates and parties fall in love with their claims and defenses. What happens when we’re in love? We sweep all the warts and problems under the carpet. So, too, in the run up to mediation. Positions harden. They convince themselves their story is the only story. They undervalue the risks and shortcomings. They assure themselves their numbers are reasonable and the other side doesn’t get it. A passionate belief in the righteousness of one’s cause is a great asset at trial. It’s not a recipe for success at the mediation table, where it undermines flexibility and corrodes the joint problem solver mindset.

Dispositive Motions: As a long-time trial lawyer, the value I bring to the process is an ability to identify risk and ask participants experience-based questions to insure that a realistic assessment of the risks is at work. When risks are reviewed openly and analytically, the parties are more likely to give them the respect they deserve. Will the case reach a jury, for example? Who is deciding the dispositive motion? What’s the judge’s track record in cases like this one? What is the risk of a successful dispositive motion here? Which claims, if any, are likely to survive? How will that impact the complexion of the trial? What impact will denial of summary judgment have on settlement offers?

Motions in limine: If there’s a trial, what are the strongest pieces of evidence supporting the claims and defenses? Is there a risk motions in limine will exclude some or all? If excluded/admitted, what is the impact on valuation? What are the chances of a new trial if the evidentiary issues are part of an appeal? Does an evidentiary ruling give the other side a built-in insurance policy for reversal on appeal? What will the added cost likely be in time and resources if an appeal is taken?

Witness assessment: How do the parties come across? How will they stand up on cross examination? Are there missing witnesses or documents? How sympathetic is the claim? In an employment case, will the same considerations that influenced the decision maker influence the jury? Are the key witnesses believable? How will you handle this problem or that?

BATNA/WATNA: Fisher and Ury in their landmark book, “Getting to Yes,” taught us about BATNA and WATNA. What is your best and worst alternative to a negotiated agreement? What does your worst day look like? What is the most likely alternative to a negotiated agreement (MLATNA)? How does your BATNA/WATNA/MLATNA compare to the offer on the table?

Collatoral consequences: Have the parties considered collateral consequences? How likely is this case to result in the public exposure of private or embarrassing facts? Will the media be interested in this case? Will media attention have an impact on product sales or the market? Might a verdict impact claims of other potential parties similarly situated? Will the dispute result in important non-parties being dragged in: customers, bankers, clients, patients, distributors, vendors, etc.? What is the risk of negative consequences from dragging in outsiders with whom the parties do business?

Case evaluation: Has the case gone through case evaluation under MCR 2.403? What was the result? Why did the case not settle? Who was on the panel? What did they miss? How are case evaluators any different from members of the jury pool?

Fees and costs: How much has been spent on attorney fees and costs to date? How much more is likely to be spent to be ready for trial? What’s the cost of trial? What is the risk the loser will be ordered to pay the attorney fees and costs of the other side as sanctions under MCR 2.403 or pursuant to a fee shifting statute? Is the principle worth the cost? Could the needs and interests of a party be met without trial? In an era where no more than 1% of the cases are being tried, what makes this dispute a candidate for a full-blown trial on the merits? Would the parties be better off managing their risk? How can they best do so? As Bill Sankbiel liked to say, “A good settlement is better than a good case. You can always lose a good case.” Judge David Lawson adds “A good settlement is an exchange of risk for certainty.“ A good mediator helps the parties weigh these considerations.

Mediator as Messenger

An important role for the mediator is to be a messenger, carrying offers and counter-offers back and forth between rooms, encouraging movement, translating messages and rationales into language the other side will listen to, process and understand. Sometimes, even when the parties reject joint sessions they have a message or two they truly want the other side to hear. “You didn’t handle this right.” “This shouldn’t happen to anyone else.” “This was not personal. We followed our procedures.” They may prefer that the mediator convey the message. If the message is “I’m sorry,” experienced mediators push back. A good apology is best delivered in person by the parties. Mediators should lay the ground work by preparing one party to deliver it, the other party to receive it.

If the parties are interested in relationship repair, exploring possible business solutions or establishing new channels of communication for the future, the mediator can assist in working through whatever needs to be done for that to happen. In a dispute over a commercial lease, for example, part of the tenant’s frustration was how its many complaints fell on deaf ears. The landlord experienced frustration when the tenant engaged in self-help repairs the cost of which were then deducted from the rent – which occurred whenever the landlord didn’t seem sufficiently responsive. A new complaint process was developed through mediation that both sides have found addressed their respective concerns.

Mediator as Painter of the Courtroom Picture

Another important aspect of the mediator role is exploring the expectations each party brings to the table about trial. Outside the profession, most people have no clue what a real trial looks like. In the last several years, I’ve discovered that neither do many litigators. In 2017, less than 1% of all cases in Michigan went to trial. Lawyers are no longer getting first hand trial experience. For most litigants, what they know about trials comes from television and the movies. They have no sense of what a courtroom actually looks like, what’s necessary to prepare, how evidence is introduced, the limited time they will have to make their case, the number of breaks they get, the impact a judge can have on the proceedings, restrictions on what they can say to the jury and what it’s like to be cross-examined by a skilled advocate. An important technique for the mediator, therefore, is to engage the litigators in painting the courtroom picture, delivering a realistic appreciation for what can be expected. Many litigants are surprised to learn that their day in court is not what they imagined. One small example: many parties believe they can simply take the stand, swear to tell the truth, turn to the jury, explain their case, and persuade jurors to rule in their favor. Not so fast. We proceed by questions and answers. There are no narratives. Questions cannot be leading; they must be open ended. The testimony must be admissible. There are rules about admission of documents. Witnesses are not permitted to go beyond the questions asked. Proving someone a liar is difficult and rare. Understanding how a claim or defense will unfold in the courtroom can have a prophylactic impact on a participant’s desire to roll the dice.

Conclusion

Mediators are accustomed to identifying and removing impediments to resolution. We dismantle road blocks preventing trust from developing between parties. We build relationships and gain participant trust for ourselves or our process. We dig down to interests and needs. We translate each party’s message into words likely to be heard and understood in the other room. We identify and explore risk. We make suggestions about formulating proposals. We are agents of reality. We help parties assess value based upon risk. We aid in the search for common ground and brainstorm options for resolution. We assist in relationship repair when that is of value, and we open new channels of communication. Every day in our practices we are faced with parties filled with suspicion of one another, a strong sense of victimhood, escalated emotions, misunderstandings, failures to communicate, unrealistic expectations, weak risk analysis, ignorance of the cost of non-agreement and more. When parties reach out to hire a mediator for help in resolving their dispute, an additional obstacle may be present: skepticism, misperception and distrust about our role in the process. We may be viewed as one more hurdle standing between them and a desired result. We must reframe this erroneous “job description” and replace a negative perception with a positive one. By explaining we are there to provide information about risk and cost, and by gaining their confidence in our process and establishing the foundation for a WIN/WIN resolution, we assist them in deciding whether to settle and at what level. That’s our job!

Footnotes

[1] For every party willing to disclose skepticism, I worry about the participants who keep similar perceptions to themselves.

[2] Later in this paper I will address some of the other significant roles or responsibilities of mediators.

[3] Thanks and a “tip of the hat” to Bill Marsh, Global Mediator of the Year in 2014-15, who presented at a 2018 conference of the International Academy of Mediators in Cleveland, Ohio. Marsh nails it!

[4] A negotiation coach doesn’t dictate what the parties should settle for; only how best to reach their own goals and objectives.

[5] No one knows the case as well as the advocates. I recognize that I will never have their grasp. Accordingly, I assure the lawyers that there is no down side to rejecting mediator negotiation suggestions. It does not hurt my feelings. They are free to do it without fear that I won’t like it.