Jeff Kichaven writes on mediation for the International Risk Management Institute. First published on IMRI.com.
It’s a common practice. And, it’s generally a mistake. Participants are more likely to achieve satisfactory results in mediation when they actively participate in mediator selection.
The key is for all sides to do independent due diligence and agree on the mediator who is right for their case. Only then will the mediator have the trust of all sides necessary to get the job done.
Most often, “let them pick” comes from lawyers with great confidence in their cases and in their abilities to persuade mediators. These lawyers believe that duly-impressed mediators will eagerly run across the hall and tell “them” that “they” have overestimated the strength of “their” case. Moreover, these lawyers believe that, because “they” chose the mediator, the mediator will succeed in getting “them” to change “their” positions.
All of this may be true. But it doesn’t go far enough. Here’s the problem: Settlement almost never equals capitulation. In almost every mediation, both sides need to reassess their situations and change their positions in order to settle. The mediator needs to be able to help both sides through that process. To do that, a mediator needs both sides’ trust.
A participant is more likely to give the mediator that trust if she has participated actively in mediator selection, and not merely had the mediator thrust upon her. So, when all parties participate actively in mediator selection, all parties are more likely to trust the mediator to get the job done.
Two well-known principles—self-serving bias and reactive devaluation—support this thesis, and an example drives it home.
Self-serving bias is the tendency for a person to overestimate the strength of their case. It is thoroughly researched and well-documented. Nearly every negotiation text and course includes a segment along these lines: Two comparable groups of people are given a hypothetical lawsuit to analyze. One group is told that they represent the plaintiff. The other is told that they represent the defendant. Those who represent the plaintiff always evaluate the case as significantly stronger than do those who represent the defendant.
The sources of self-serving bias are easy to understand. It can stem from a lawyer’s faithful discharge of the fiduciary duty to be a zealous advocate. It can also stem from what psychologists call “dissonance reduction,” the tendency to discount or explain away information inconsistent with one’s preferred outcome. It’s the tendency to interpret ambiguous information consistently with our side’s interest. Sometimes, we just call it a “blind spot.” In any event, it surely exists and, to one degree or another, we all have it.
This is the tendency to devalue information or proposals made by one’s counter-party in a negotiation. People are naturally suspicious of what someone with a vested interest in a particular outcome tells them. A classic example is our skepticism of what car dealers tell us about the “value” or “benefits” of a car which they are trying to sell for a high price, and we are trying to buy for a lower one.
To succeed, a mediator must be able to help everyone overcome both self-serving biases and reactive devaluation. A mediator has to be able to break a lot of bad news to a lot of people with a lot of credibility. Since a mediator is neutral, bad news from the mediator is generally not met with the same reactive devaluation as would greet that same bad news if broken by a litigation adversary. It’s more likely to sink in. Since almost all parties enter mediation with some self-serving bias, the bad news has to sink in and affect everybody’s pre-mediation views if the mediator is to succeed and catalyze progress toward settlement.
A mediator’s credibility can be compromised if the participants do not perceive her as truly neutral. If a participant has not participated in mediator selection, and thereby expressed a degree of confidence in that mediator’s judgment, it’s too easy for reactive devaluation to rear its ugly head and motivate a reaction along these lines to a mediator who is just doing her job:
She was supposed to listen to us, realize how right we are, and tell them what a bad case they have. Instead, she’s asking us all these tough questions! We never should have agreed to use their mediator. We thought she had integrity. Turns out she’s just their stooge. We’re out of here.
This does not mean that you should never accept a mediator suggested by the other side. You should not do so, however, until you have conducted your own due diligence and found the mediator appropriate. Then, the mediator is not just their choice, but your choice, too.
Here’s how well it can work (with some facts modified to protect confidentiality). Recently, I mediated a wage-and-hour dispute (along with related tort and contract claims) brought by a live-in nanny against the parents of the two children for whom she cared. The nanny was in her late 20s, an immigrant from Central America. The parents were an unmarried couple, he a Caucasian in his late 50s, a successful business executive born in the United States, and she in her early 30s, born in Asia and living in the United States since a teen. He did not always live with the rest of the family.
The nanny described oppressive working conditions: days upon days with no time off, with minimal support from the mother and even less from the father. When the nanny threatened to quit, the father threatened to report her to the Immigration and Naturalization Service (INS). When she eventually said that she would quit anyway, the father said, “You can’t quit! What will happen to the children? Their mother’s always drunk, and I’m never around. Don’t you love them?”
Even this manipulation fell short, though, and the nanny quit and then sued when she felt that her physical safety was in jeopardy. The reason for her fear? She reported then-recent incidents when the father came home, perhaps drunk and certainly angry, threatened the mother, and sounded as if he meant it. She did not want to be next, and left. (The couple has since split up.)
The nanny’s lawyers had proposed me as the mediator. I had never worked with the parents’ lawyers before. To their credit, the parents’ lawyers did not blindly accept me. They conducted considerable due diligence, including a telephone interview and reference check. Some weeks later, when I was engaged, it was a mutual decision. The process paid off.
The mother’s primary defense was that she was judgment-proof. The father’s primary defense was that he was not the “employer” under the wage and hour laws, because of his frequent absences from the home. The father’s lawyer acknowledged that a summary judgment on this issue was unlikely because of the father’s periodic presence in the home and other facts. But this lawyer was nonetheless convinced this argument was a winner, and instructed me, accompanied by the obligatory staccato finger-pointing, to “make them understand” why a downtown Los Angeles jury was going to see it their way.
After what seemed like several minutes, I found myself with him in the hallway, away from his client. I asked his permission to share my thoughts. He agreed. “I rarely say this to anyone,” I started, “and I know it’s not your view, but I believe that your client is at serious risk of a punitive damages award against him.”
Dead silence for another long time.
“You really think so?”
Another long pause.
“I’m interested in knowing why,” he finally said. “We hired you so that we could learn something from your reactions.”
“Your client is a middle-aged white man who has horribly mistreated two women of color. Between them, these women barely match his age, and probably do not match his weight. I think that a downtown Los Angeles jury is likely to throw the book at him.”
“What about the defense that he’s not the employer?”
“You don’t have to be the employer to be liable on all the common-law claims. But even so, we agree that your argument on the wage-and-hour claims is not a likely candidate for summary judgment. Given the circumstances of the witnesses and their likely testimony, I don’t think your jury will give your client any benefit of the doubt. In fact, I think exactly the opposite.”
“Let me think about it. I appreciate your honesty. It’s a different take on things.”
Two hours later, the case settled. I never saw the father, but after a long talk with his lawyer, the father’s position changed from “nuisance value” to “real money,” and the nanny agreed.
How differently this likely would have gone had the father’s lawyer seen me merely as the plaintiff’s shill. Could the plaintiff’s lawyer possibly have shown that kind of trust in my “take on things” had he not actively participated in the mediator selection process?