Good mediators look for trouble. No dispute is ever as simple as the party would have you believe. The thoughtful mediator understands that the solution of the stated problem generally requires the discovery and treatment of other “hidden” or unexpressed problems. Such problems are encountered at multiple sites in the dispute.
Most people who ask for assistance in solving problems do so because they have not previously been able to solve the problem. This is often so because they do not fully understand the complete extent of the problem. This, in turn, is commonly the result of viewing the problem exclusively from their perspective. This narrowness of vision is typically the result of not actively and empathetically listening to the adversary. A mediator who is able to induce the parties to conceptually move to the other side of the table has already gotten to the downhill-side of the dispute. Individual, and sometimes even institutional, parties often are quite clear that they have been wronged but are frequently quite unclear as to what realistic remedy is appropriate. Somewhat surprisingly, legal counsel is frequently not fully aware of their client’s most fundamental needs or interests. Thus, the problem for the thoughtful mediator is how to persuade the parties and their lawyers to both, internally, dispassionately, and reasonably examine their own needs and options, as well as, externally, to dispassionately and reasonably to examine the needs and options of the other parties. This is not rocket science but it is difficult to do. The two main tools of the mediator can be said to be the mirror, which allows a party to see itself (and its position) as others do, and, binoculars, which allow parties to see beyond the “no-mans-land” of the litigation battlefield, in to the heart of the “enemy camp”. Both steps require focusing on the problematic parts and people in the overall dispute.
Big problems generally are composed of smaller problems and most financial problems involve more than just money. Many, if not most, problems involve problem people. Most, or all, of these internal problems must be identified and resolved before the overall problem can be fully resolved. Thus the mediator, not unlike the ER doctor, must initially locate and assess all major injuries and treatment limitations. Only then can the mediator hypothesize a course and order of “treatment” to address the dysfunction. And, as in the ER room, the “patient” is, more often than not, unable or unwilling to fully describe all of the injuries. Just as some times complaints of arm pain are caused by cardiac problems, so to are demands for large financial payments sometimes caused in large part by an emotional need for recognition of injured pride.
It can be very helpful for a mediator to assess various areas of each dispute to screen for problems which require treatment in the course of working–out an overall resolution of the dispute. The following list contains areas which warrant examination in most disputes.
Many mediations are unsuccessful due to the lack of agreement between the parties as to some highly material fact. Sometimes neither party has focused on that fact and thus never explored the hard evidence on point. More often than not, the parties have (or promise to have) conflicting evidence on a particular material fact. It is important for the mediator to determine, in advance of the mediation session, the existence of such factual disputes and to explore ways to fairly and objectively determine such facts. This might include: interviews, depositions, joint expert analyses, examination of photographs or public records. Naturally, cost and delay have to be weighed against the probability of resolution with the evidence at hand. Some factual disputes can not be definitively resolved in mediation but many can. Many attorneys however make the erroneous assumption that a case is never ready for mediation until all conceivable facts and legal theories have been totally explored. Mediators will understand that many times bitterly contested facts prove ultimately irrelevant to the actual resolution of the overall dispute. It is also the case that mediations must sometimes be adjourned to allow the parties to attempt belated resolution of a key factual dispute. The key for the mediator is the determination of whether additional extra-mediation exploration of a factual dispute appears really necessary for a resolution of the principal dispute.
Good lawyers should agree upon applicable law. On the other hand, most legal disputes involve substantive and /or evidentiary legal disagreements. Many lawyers come to mediation without the same meticulous legal research that they would presumably engage in if they were preparing for trial. While a mediator is not a finder-of-law, he or she should make sure that, no latter than the beginning of the mediation session, they have a copy of any key statute, case report or rule of evidence or procedure. Confronting a party with a problematic adverse authority can lower inertial resistance to position modification. The mediator should consider asking counsel for the parties to be prepared to go into detail on some legal question that appears to the mediator to be both murky and pivotal. There are, of course, many legal disputes in which there are real undecided legal questions, a split in foreign federal circuits, conflicting state intermediate appellate court decisions, novel factual situations or just “grey areas”. Depending on the parties and the circumstances such cases may call for a formal trial. Yet, many times it will still be in the best interest of the parties to mediate a resolution and defer an authoritative and public legal ruling to some future day. In any event, there should never be any dispute as to the precise language of existing and arguably applicable law.
Parties, more often than not, are a big problem. They typically have been damaged or injured or have been sued and threatened with financial loss. They have typically been accused of acting negligently, unlawfully, or at least callously. They are often quite angry. This emotional layer of the dispute is real and powerful. Addressing the emotional component of a dispute is generally a prerequisite to full resolution. Often the primary moving force for a plaintiff is not greed, but rather anger, humiliation, desire for revenge, etc. This usually will only become clear if the mediator spends a good deal of time listening to the plaintiff speak, especially in caucus. There are also mediations that get stuck because some other influential person (a spouse, a friend, another attorney, a child or a parent) is not present at the mediation. It is often, thought not always, wise to make sure that such person is at least present at the mediation. And in a few cases it may be desirable, or even necessary, to join another party to the lawsuit to comply with the law or to allow for full relief.
Governmental parties are always problematic in terms of representatives at mediation. The tension between the need for entity action to be formally approved by a vote of the entire board of the public entity and the restrictions of the state’s open meetings act, needs to be carefully worked out and agreed upon by all parties up front.
It is vital for the mediator to make sure that a corporate party is represented by a person with actual authority to approve any negotiated agreement. This is most typically a concern in a case in which there is insurance coverage. Practicality may dictate that such a person will participate by telephonic conference call, although this is never ideal. The key for the mediator is to make sure that an adequate mechanism is in place to immediately approve any negotiated memorandum of understanding (MOU) and that all parties have agreed to it. It is rarely desirable to allow the parties to leave the mediation session without a signed agreement or MOU.
Good attorneys are normally tremendously helpful and a pleasure to work with in reaching resolution but the others can cause premature graying of hair. Some mediators find that counsel who are being compensated on an hourly basis are sometimes markedly more resistant to early resolution then are their colleagues who are paid on a contingent fee basis. Some attorneys are simply more adversarial in nature than others. Some attorneys still don’t fully understand how mediation works. But, in any case, problems with a lawyer are also problems in the dispute and should always be addressed even if not always fully resolved. The mediator must respect the attorney’s role but comments to the lawyer in caucus are obviously heard and considered by the client. It is sometimes helpful for the mediator to speak privately with one or more of the attorneys. The mediator should always urge the party to carefully consider the legal advice of their counsel, especially counsel’s judgment as to the client’s likelihood of fully prevailing at trial. On the other hand, it may be helpful to point out that the final decision as to what to do about resolving the client’s dispute can only be made by the client. The mediator, at least unless specifically so requested by all parties and their counsel, should be careful not to directly tell a party which course they should elect. It is helpful to recall that citing the arguments and predictions of opposing counsel are a helpful, yet neutral, method of “applying heat” to an intransigent party.
Counsel will normally jointly prepare the formal settlement agreement. It is wise, I believe, to suggest a clause in any settlement agreement or memorandum of understanding allowing the mediator to be the final arbiter of any drafting disputes that arise out of such a document. It also seems wise to incorporate a clause in any agreement requiring the parties, prior to going to court, to first try to mediate any future dispute between the parties that arise out of interpreting the terms of the settlement agreement.
There are few disputes in which damages are not a serious problem. The breadth of space between the stated fair market value of the dispute according to the plaintiff and the value as calculated by the defendant is often breathtaking and disheartening. It is helpful for the mediator to attempt to get initial agreement as to what types of damages are legally recoverable in the type of case at issue (i.e. punitive, future wage loss, emotional distress, etc.).
The mediator can press the parties for evidence of specific damage evidence that they will be able to admit into evidence at trial. The mediator can inquire about actual recent jury, or judge, awards in the area for cases similar to the one at issue. The mediator can also enquire as to existing or potential liens on any recovery. Further, the mediator can explore the possibility of a structured settlement. In general, the mediator should push to find the lowest amount of money that the plaintiff would accept to resolve the dispute and the highest amount that the defendant would pay to get rid of the dispute. Care should be taken not to prematurely cause, or allow, the parties to lock themselves into a number so as to effectively prohibit movement. Both parties should be made to ponder the element of risk that their optimistic trial scenario will not materialize. The parties should be required to evaluate the difference between a verdict and a settlement check. The parties may benefit from a discussion about staggered payments or even non-cash resolutions. A defendant should generally be asked, Is there anything else you would be willing to do that might have significant value for the plaintiff.
In summary then, if mediation is not moving smoothly and quickly towards resolution, the mediator should look for trouble at all levels of the dispute, probing for points of friction. Each such troublesome issue should be analyzed and dealt with in a patient and empathetic manner. Above all, as Martin Luther King might have said, mediators need to keep their eyes on the prize.
From John DeGroote's Settlement Perspectives We recently explored what decision trees are and how to create them in Decision Tree Analysis: The Basics. While it’s important to revisit the basics...By John DeGroote