Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career.
Ready?
Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.
I’ve been told that “the market has spoken and it wants evaluative mediators.” I’m sure the cancer “market” would also like to speak to its physicians. If I had malignant melanoma, I’d love to find a doctor able to cure it with rational argument, hard-ball tactics, and position-based negotiation. Surely he can convince my cancer that it’s wrong and cannot win the battle simply by replicating itself over and over again. If he’s such a good doctor, why can’t he convince my adversary that it’s just not right?!
You say the physician has specialized knowledge and experience in cancer treatment and knows better than I what will be the most efficient and effective medical protocol? Is my reasoning faulty? Do litigators know how to “treat” their conflict resolution problem with evaluative mediation because they’ve experience success with it? Maybe. But how do they know? Are they aware whether they “left money on the table” or paid more than the other guy was willing to accept? Who might be in possession of that extremely valuable information?
Uhhhhhhhhhhhhh, the mediator????
Let’s talk to the social scientists about why people might prefer evaluation followed by a mediator’s proposal. According to a recent Fast Company article, Why Your Gut is More Ethical Than Your Brain, people would rather put their fate in the hands of someone they’ve been told is a rational decision maker when an “emotional” decision-maker would have delivered a better result. The article at issue doesn’t answer the question “why” but I have an educated guess. We trust reason and distrust our “gut.” That’s what we’re taught in a scientific age, even as the science evolves to tell us that our original teachers were wrong. We continue to trust our initial teachings even though our feelings + our subconscious (“intuition”) almost always make a better decision than our rational thought processes, which are generally simply rationalizations for what our “gut” decided without “us.”
So what’s the take-away here?
It is indisputable that one of the primary purposes of a settlement negotiation is the attempt to value an eventuality that cannot be predicted – the outcome of litigation. But value it we must — at least within some reasonable range — considering the thousands (perhaps tens of thousands) of variables in play — the settled or unsettled state of “the law”; the ability of each party to make their narrative coherent at worst and compelling at best; the location of the court where the matter will be decided – downtown Los Angeles; Santa Monica; or San Francisco — cities with very different “deciders”; the ability of each party to withstand the economic burdens imposed by the litigation; the capacity for one party’s counsel to “bury” the other’s; the veracity of the witnesses; the historic record for victory or defeat for this type of case in that type of industry; the personality, politics, or idiosyncrasies of the Judge; and, even the time of year during which the case is to be tried, not to mention the skill and experience of counsel for each side.
To these uncertainties we must add the cognitive biases to which we are all vulnerable no matter how “rational” and scientifically-minded we are. These cognitive “tendencies” include our inclination to seek out and believe “facts” that support our position and to avoid, ignore or discount those that do not (confirmation bias); our tendency to discount as unworkable, without merit or downright evil suggestions our opponent forwards (reactive devaluation); our capacity to create patterns and narratives where none exist (clustering illusion); and, our unfortunate weakness of buying our own B.S. (self-serving bias) to name just a very few.
Despite the difficulty inherent in evaluating the merits of one’s own case (and of the mediator’s attempt to value each side’s chance of victory based upon no admissible evidence and the untrustworthy nature of both party’s factual narrative and legal analysis) a mediator helping litigants and their attorney’s settle a case must be capable of asking pointed questions that will counteract the parties’ biases to some degree and help them understand the truly unpredictable nature of a law suit’s resolution.
All of that being said, anyone who believes that this evaluative process is at the heart of a good mediation needs to spend some time with better mediators. A truly brilliant mediator (and I am not here counting myself among them) helps the parties move beyond the very narrow issues raised by the litigation and past the spoils to be won or lost there. A gifted mediator able to help the parties ascertain their own as well as their negotiation partner’s true preferences, desires and needs; to open the bargaining session up to include every item of value the parties have to exchange; and, to locate and resolve, for each party, the experience of injustice that brought them to the difficult and pricey decision to hire outside litigation counsel in the first place.
What we litigators tend to forget in the heat of our battles to win the discovery motion; prevail on our request for a pre-judgment attachment; procure the testimony we need for the silver-stake motion for summary judgment; or, write the winning Petition for Writ of Mandate or appellate brief, is that our clients want to make a savvy, sophisticated and durable business deal that leaves them feeling (yes, feeling) that the settlement reached does not constitute a gross miscarriage of justice.
That’s the view from this side of the mediation table after five-years of full-time neutral practice and twenty-five of litigation and mediation advocacy.
Like the trial lawyer facing a jury, a skillful mediator facing counsel and clients must provide both the most educated and honest rationale for his or her valuation of a party’s chances at trial; the most empathic response to the clients’ many expressions of anger at the injustice of it all; and the facilitation of a commercial negotiation in which making the best business deal is of far more importance than proving one’s “case” right.
Do choose a mediator able to open up the hood of your opponent’s case (and your own); to kick the tires; and, to note the rusted places under the thin coat of a recent paint job. If, however, “valuation” is the best your mediator can do, you need to raise the bar for excellence and experience the satisfaction you feel when your client says, “great job! It’s a good settlement and a fair one as well.”
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