Reflections on Effectively Achieving Client Goals at the Mediation Table
Litigators too often approach the mediation process with the same tool they employ in every other aspect of the litigation process. We call that tool traditional zealous advocacy. Zealous advocacy is expected of lawyers and does the job well in almost every aspect of our civil justice system. Because mediation offers a unique opportunity to take a step back from the conflict and search for mutually beneficial solutions, however, a very different tool is necessary if client goals and objectives are to be achieved. This paper will explore how mediation advocacy differs from traditional principles of zealous advocacy; and suggest an approach to mediation advocacy designed to maximize the opportunity for resolution afforded by mediation.
What is “mediation?” Plugging the word “mediation” into an internet search engine brings up over 155,000,000 results. When boiled down to its least common denominator, mediation is nothing more than an assisted negotiation. As we know, a negotiation is completely voluntary. Negotiations result in resolution, therefore, if but only if both sides voluntarily decide to manage their risk, recognizing that the available terms of settlement are better than spending the money and risking a dispositive motion or trial. Unlike a trial, arbitration or dispositive motion, no judge, jury, or arbitrator decides the outcome. No one determines who is or is not telling the truth, who is right and who is wrong, and no one imposes a result on the parties. The parties are totally free to decide for themselves whether to settle and on what terms.
Since parties to a dispute may readily negotiate on their own, what is the assistance offered by a mediator? In my view, mediators are most helpful when they manage the exchange of information and perspective, making certain each party has all the information available so as exercise good judgment about settlement.
Specifically, mediators explore, inter alia:
As the answers to these kinds of concerns are heard, considered, weighed, and processed, the parties – with the advice and recommendations of counsel – are ready to make good, business-like judgments concerning resolution. Whether to settle and on what terms is their decisionto make, not the mediators, not counsel.
The single most important distinction between the mediation process and litigation is that the decision-maker in litigation is a third-party neutral. The decision-makers in mediation are the parties themselves. It only makes sense, therefore, that all efforts to persuade should be directed to the decision maker on the other side. The goal is to persuade the other side to manage their risk and settle, rather than roll the dice. Again, this is because mediation is a voluntary process, even if court ordered. The mediator cannot impose a resolution. Only the parties make that decision. While obvious, too many advocates nonetheless draft their written materials and tailor their oral advocacy to moving the mediator into their corner not the decisionmaker.
The obvious question is “why?” Advocates believe persuading the mediator will cause them to take their side and be their advocate in the other caucus room. Depending on the mediator, their belief may be well-founded. However, mediators are trained to resist such efforts. Most of the mediators I know at least to maintain the appearance of neutrality if not neutrality itself. Mediators are trained to make one side’s arguments in the other room, but translated or reframed into more neutral terms, while maintaining their distance at the same time. “As I understand the argument they’re making ….” Perversely, the very arguments made to influence the mediator cause resentment and escalate emotions in the other room, making the mediator’s job that much more difficult. Parties on the receiving end of overly aggressive written advocacy, for example, often start the mediation by threatening to leave.
Mediation is a dispute resolution process, not a justice process where right and wrong are adjudicated, where a decision-maker determines the truth. The emphasis, therefore, needs to be on the 1) benefits of resolution; and 2) the risks of litigation. Parties will rarely agree on the facts or the inferences to be drawn from those facts. They might very well agree, however, on what the risks are. Risk assessment creates doubt. Doubt creates fertile soil to plant the seeds of resolution. When the risks and perspective are presented with civility and respect in a rational dialog, parties are better able to incorporate important concerns and make rational decisions.
In my practice to lay the foundation for a civil and respectful exchange, I ask parties and counsel to set aside their zealous advocacy and approach the mediation process as “joint problem solvers,” recognizing that everyone has precisely the same challenge: is there an off ramp to the present dispute? Joint problem solvers agree to make reasonable concessions, don’t try to score every point, listen respectfully, attempt to understand the other side’s perspective, and employ the language of diplomacy.
For instance, accusing the other side of lying will generally antagonize the accused, causing a reaction and a likely counterattack in kind, charges of “mudslinging” or both. By contrast, far more effective is the advocate who calmly pulls together the impeachment evidence and presents it this way: “Most cases are won or lost based on who the jury believes is most credible. Here’s the evidence we expect to present to demonstrate that (our client) is more likely to be believed than yours.” A respectful presentation highlighting the risk to good name and reputation can move the needle. On the receiving end, good trial lawyers welcome the opportunity to hear such a presentation in order to learn what they’re up against. Even if mediation doesn’t resolve the dispute, the parties receive value in being better able to prosecute and defend the claims. That said, most disputes do settle at mediation. The very process of a respectful exchange of views plants the seeds of doubt leading to recognition that settlement outweighs rolling the dice.
Michigan litigators rarely agree to joint sessions. Most prefer an all caucus/shuttle diplomacy model where the parties may never actually ever see one another. Missed is a rare opportunity to advance clients goals and gain valuable insight. Mediation is the only stage in the process where the parties and counsel are permitted – indeed encouraged – to communicate directly with one another. There are many things the parties might say directly to one another, given the chance, which could give them satisfaction and move the dispute closer to resolution.
Regarding advocates, who have the most input into process design, it never ceases to surprise when experienced counsel passes up a chance to make the case or plead their cause and the benefits of settlement directly to opposing parties. With advance planning, they have ample time to prepare their remarks select the most effective language and marshal their points in the most compelling and persuasive order. More significantly, they will have the undivided attention of opposing counsel and client alike. In joint session, talented advocates can reveal how compelling a case they might make to a jury; demonstrate their ability to tell a good story persuasively; and showcase their skills as effective and compelling communicators. In the hands of a mediator trained to manage joint sessions, the environment will be a safe one.
For tips preparing a party to make a joint session “pitch” at mediation, see https://www.starkmediator.com/wp-content/uploads/sites/4/2020/04/Stark-Mediator-Effective-Presentation-Directions.pdf
When advocates are asked for an explanation of their aversion to joint sessions, typical answers include: 1) “We will only antagonize each other and get everyone’s back out of joint.” True enough where aggressive zealous advocacy is employed. As noted supra, however, mediation advocacy tailored to persuading the decision maker will rarely cause a mediation to go sideways. 2) “We already know their version of the facts.” Perhaps, but rarely put together as a compelling narrative story in a party’s own words previewing what the jury will ultimately be told. Prudent participants in the joint session will listen carefully to see if there is anything new; and to determine how effectively the speaker can communicate their thinking. 3) “My client might slip and make a mistake.” Lawyers who prepare their clients for the mediation process anticipate potential mistakes their clients might make and prepare them to avoid doing so. I’ve presided over scores of joint sessions. I have yet to see a slip of the tongue that made a difference. See, https://www.starkmediator.com/wp-content/uploads/sites/4/2022/01/Why-You-Should-Consider-Joint-Sessions.pdf
No matter how deep their differences, no matter how entrenched in their positions, no matter how escalated their emotions, parties often share common ground, areas of agreement overlooked or drowned out by the dispute. Before the termination, for example, the former employee may have loved working for the company; and the company may well have valued the employee’s service. The two businesses now litigating the quality of machine parts were always satisfied with price and delivery in the past. The CEOs of each enterprise, in charge of businesses founded by their grandfathers, have more in common than they might have thought. When the founding partners first came together to establish the enterprise now imploding, they enjoyed each other’s company and respected one another’s ability.
Identifying common ground is sometimes a revelation to the parties and often serves to build trust and establish momentum toward future agreements and resolution.
The best negotiators are strategic. They develop an offer/concession approach with their clients long before they reach the mediation table, a strategy which anticipates each move and countermove likely to occur round after round until settlement is reached. Strategic advocates plan out the negotiation in their head, anticipating how each offer will be received, predicting the other side’s response, and carefully working the negotiation through step-by-step until their settlement goal is achieved. Fortified with a plan, they are not buffeted by emotions in the moment and at the table by misbehavior or overly aggressive advocacy from their opponent. A well-conceived plan smooths out an otherwise emotional roller coaster ride. They have a plan and they implement their plan, ignoring distractions. Strategic negotiators generally get what they’re after. Regrettably, strategic negotiators are rare. Too many advocates limit their planning to an opening number and a bottom line, relying on their gut instinct and experience for all the moves in between. Some advocates do not prepare even that much. Seat-of-the-pants negotiation may work in some cases, but it is not a strategy to maximize results over time.
An offer/concession strategy is a prediction. Predictions about the future are fraught with peril. Mistakes will be made. Should unanticipated risks be identified, for example, the value of the claim or defense is impacted accordingly, which, in turn, effects the overall settlement value of the dispute. Accordingly, strategic negotiators must also be flexible. Adjustments in the strategy may be necessary.
In any event, with an offer/concession strategy, party expectations are better managed, and the negotiator retains tighter control of the process. Clients are less frustrated, less likely to become discouraged, and less likely to grow impatient. Parties who are frustrated, angry or impatient are more likely to make mistakes, offering too much, leaving money on the table, or giving up too soon. With an offer/concession strategy, even disappointing moves are anticipated in advance and planned for. By focusing on process, both parties remain in the negotiation. The danger of one party or the other withdrawing is diminished. Indeed, by developing an offer/concession strategy, counsel reduces the risk of error and reading or sending the wrong signal.
If the strategy fails to bring the parties within the settlement “landing zone”, it could be a sign that one or both parties are not ready to settle; or someone’s evaluation is in error. In either case, counsel can learn a great deal from failure. It could be that one side or the other has underestimated the risks and a fresh assessment is necessary. It could be the problem can be resolved by a little additional discovery – the parties disagree, for example, about how a witness will testify. If so, the mediation can be adjourned until the witness is deposed. Perhaps the parties weren’t as ready for mediation as initially thought. The top or bottom line a party brings to the mediation table is the end product of a careful calculation as to risks, a weighing of strengths and weaknesses, an assessment of the judge, the legal foundation of claims and defenses, economic and non-economic loss, the potential jury pool, the state of the law, and more. If participants are paying attention to the information exchanged during the mediation process, their final evaluation should change to incorporate the fresh insights learned.
Effective negotiators combine their dollar proposals with a rationale or explanation, so the other side doesn’t conclude the offer is totally arbitrary. In an employment case, for example, how much is allocated for lost wages to date minus interim earnings? Is there money allocated for future lost wages, emotional distress, and attorney fees? Have the numbers been reduced to present value? What interest rate was used? If a party is claiming lost profits, how are they measured and what assumptions are they based upon? Unexplained numbers typically irritate the recipient and lead to counterproposals that are generally unproductive, resulting in equal consternation on the other side and a poisoned negotiation atmosphere. Unexplained numbers are rarely productive. By contrast, a rationale generally leads to a robust and constructive discussion of the assumptions and bases rather than simply complaints about the numbers themselves.
Whatever the explanation for a proposal, any settlement number communicated will be the loudest message heard by the recipient. Accordingly, I present the rationale for the numbers before presenting the numbers themselves. Once the number is presented, parties may stop listening. Because I want the participants to understand where the number came from, how it was derived, and what the offeror was thinking, it only makes sense to save the numbers for last.
Mediators want to assist the parties in making good judgments about settlement. Typically, they are the only participant in the process who will have been in both rooms with exposure to how litigants are participating. There are many issues about which a mediator might be helpful:
In litigation, judicial remedies are confined to money damages and limited equitable relief from an often-reluctant judge. In mediation, as in any negotiation, by contrast, the only limit on proposed settlement terms is the creativity of the participants. By considering the underlying needs and interests of each party, i.e., recognizing what may be driving the dispute, participants may be able to expand the pie with proposals unavailable through litigation. For example, mediation may result in a business solution where the parties continue to work together. No judge could order that. In a dispute between a franchisee and a franchisor, modification of oppressive enterprise rules can result in a WIN/WIN success for both parties. In an employment case, a plaintiff claiming wrongful discharge may be offered conversion of an otherwise black mark on their resume (“termination for cause”) with a negotiated resignation or letter of recommendation in its place. Disputes made public in the media can be settled by drafting a joint press release that gives each side cover. Settlement agreements can include non-disparagement clauses, confidentiality, and cooperation in future litigation.
Many mediators describe the exchange of information during the mediation process as a “learning conversation.” If the dispute does not resolve itself, participants have learned something new or better understand something known in a new light. As noted supra when parties are truly listening, the numbers they’ve brought to the table – their top and bottom lines – should change. In the relatively rare event that mediation does not result in resolution, the parties are better equipped to prosecute and defend their claims and perspectives going forward.
Parties are the ultimate decision-makers. As full participants at the mediation table, they should understand the mediation process inside and out. That requires a good deal of advance preparation and party education. How does the process work? How does this mediator do things? What is the mediator’s role? How should the party act? When should they speak up? Should they prepare opening remarks? What is expected of them? What can they expect from the other side? What can they say and what should they not say?
If parties are to make the most of the opportunity to learn, and to exercise good judgment unclouded by emotions and distractions, they must be ready. Some of the topics that should be covered include:
Savvy litigators and their clients understand that mediation is a unique opportunity to engage in an effective dispute resolution process: a process designed to save time and money, exchange critical information, reduce consternation, limit disruption, manage risk, and achieve mutually beneficial resolution. When parties proceed as joint problem solvers, properly prepared by advocates who appreciate the power of replacing zealous advocacy with mediation advocacy, their underlying needs and interests are met, and their goals and objectives achieved.
 Indeed, Standard I of Michigan’s Mediator Standards of Conduct is party “Self Determination.” https://www.courts.michigan.gov/4aa077/siteassets/court-administration/standardsguidelines/dispute-resolution/med-soc.pdf
 In “The Merchant of Venice,” Shakespeare reminds us of an important truth: “love is blind.”
 Coming from the world of litigating and mediating employment disputes where plaintiff is typically represented on a contingency fee basis, I welcome commercial disputes because both parties are paying their counsel by the hour. Somehow writing monthly checks for attorney fees helps parties better focus the mind at the mediation table.
 See “Getting to Yes,” by Roger Fisher and William Ury.
 In both state and federal court, no more than 1% of cases result in a trial on the merits.
 Parties may be ordered by a court to participate in mediation, but no court can force a party to settle if they choose not to do so.
 For advice on drafting an effective written mediation summary, see https://www.starkmediator.com/articles-links/crafting-effective-mediation-summary-tips-written-mediation-advocacy/
 See my paper on what every client should know about the negotiation process. https://www.starkmediator.com/practice-tips/2021/05/03/negotiation-101-what-parties-should-know-about-negotiations-at-the-mediation-table/
Book review by Mieke Brandon, BA, MSc(App). Mieke is a registered FDRP and accredited under the NMAS. She practices as a mediator, trainer, and supervisor since 1993. She has published...By Fredrike P. Bannink