Jeff Kichaven writes on mediation for the International Risk Management Institute. First published on IMRI.com.
Among themselves, mediators spend a lot of time discussing what makes a good mediator. These discussions are largely uninformed by the views of the consumers of our services, and are therefore largely useless.
“Good mediation” is defined by the consumers of our services to a degree far greater than we mediators define it ourselves. In short, unless the buyers are buying it, we are not doing it.
So, to provide useful information, I surveyed over 50 top-flight commercial litigators to write this article, most of whom have significant insurance coverage and bad-faith practices. I spent about a half hour on the phone with each of them. Most of them are based in Los Angeles, where I live, but others are from New York, Chicago, Washington, Baltimore, San Francisco, and elsewhere. The conversations were pretty similar, no matter where the lawyers are based. There are, indeed, emerging “best practices” nationally for the type of mediation that our customers actually demand and for which they will pay.
The lawyers I called were all “big case” people—lawyers who routinely handle multimillion dollar commercial matters. They represent plaintiffs, defendants, and insurers. Again, the conversations with all of them were pretty similar. Here is what I learned that I think will be helpful to you, whether you are a consumer of mediation services, a fledgling mediator, or a veteran trying to keep it fresh and new.
There Is Always Room for New Mediators
Everyone agreed; there are times when they go beyond their usual “short list” of mediators. There was also general consensus on the reasons for doing so, described in the following paragraphs.
This is good news indeed for newer mediators. Many high-stakes commercial mediations are scheduled on relatively short notice—less than a month. It is often hard to get your favorite established mediator so quickly. So, if you are in the right place at the right time, there is an opportunity to get the work.
Good news here too. Most lawyers are concerned that, if they use a mediator too often, the mediator will lose perceived “impartiality” in the eyes of opposing parties. So, most lawyers will spread the work around. Therefore, there are opportunities for new mediators. As a corollary tip to established mediators, if a long-time client stops using you as often as before, you might not want to take it personally.
When a litigator is operating in an area they perceive as “arcane” (patent law is often cited as an example), she is likely more open to using a new mediator who has expertise in that area.
“The Other Side Insists”
This is by far the most interesting opportunity. Most lawyers will defer to an opposing party’s insistence on a “new mediator,” so long as that new mediator passes some reasonable due-diligence threshold. After all, these lawyers say, if this is the mediator to whom my opponent will listen, that’s the mediator I want. Hence, the real inquiry is: How do you get someone (sometimes also known as “someone else’s opponent”) to insist on using your services?
Where Do Lawyers Go for Information on New Mediators?
It’s just about unanimous. “Word of mouth” in one form or another is the first, and often the only, place these lawyers go for due-diligence inquiries on mediators. For most lawyers in big firms, it’s an internal e-mail to their partners. For the plaintiff’s bar, since they typically do not practice in big firms, it’s an e-mail to the listservs of their Trial Lawyers’ Associations. For lawyers in specialty practice niches, they have listservs of colleagues in various firms as well.
Good news for new mediators: Nobody—and I mean NOBODY—said that they go the Web sites of mediation providers/panels/brokerages, or call managers or administrators at those companies. So don’t worry about whether you are on anybody’s “panel.”
What Do Lawyers Ask about New Mediators?
Typically, lawyers want to know whether any of their respected colleagues have actually worked with you, and whether the experience was a good one. Very few of the respondents said that the quality of the experience had anything to do with whether the case settled or not. It seems that, at the high-end of the mediation food chain, settlement-for-settlement’s-sake is not the name of the game at all. It is about helping people make smarter, better decisions than they were able to make before they had the pleasure of your company. Three major points emerged, and some subsidiary ones, too. They are integrity, intellect, and insight.
This is the most frequently mentioned virtue of all. Honesty, trust … call it what you will, this is what high-end lawyers value most highly. When you promise to keep a confidence, you keep it. When you promise to report something, you report it faithfully. Believe it or not, lots of lawyers complain that mediators fail to keep those promises! Generally, lawyers couple this complaint with a mention that the mediator seemed too hung up about squeezing people into settlements. That hang-up is what pressures mediators into dishonest conduct, and lawyers make it clear, those crimes do not pay. But there’s more to integrity than this.
You have to be able to evaluate cases. Period. You have to have the intellect and the background in the subject of the dispute. Lawyers don’t expect you to know as much about their cases as they do, but you simply must be able to participate in an intelligent conversation about the merits. These big cases settle only when the participants believe that the settlement at least comes close to meeting a standard of fairness. Accordingly, in the quest for this business, the “pure facilitative” mediator is probably not going to make it.
These conversations on the merits must reflect integrity as well as intellect. You mustn’t overplay your hand and claim that weaknesses are worse than they really are. You won’t get away with it. These lawyers are smart and well-prepared. Moreover, they do not scare easily. They are accustomed to dealing with large sums of money, and their clients generally can afford to fight and afford to lose. Evaluative banalities such as “this will cost a lot to litigate” and “people are sometimes surprised when they lose cases they thought they would win” will earn you nothing but a ticket out the door. Forget about images of the mediator and deception, manipulation, or trickery. It won’t work on these cases. The more honest you are, the more highly your clients will regard you.
Evaluation is a funny thing, though. Hardly anyone told me that a mediator had ever brought to their attention a weakness of which they were not previously aware. It happens once in a blue moon at best. A bit more often, lawyers told me that a mediator helped them appreciate the true significance of a weakness that they had underestimated. The true evaluative “skill” lawyers want in mediators, though, is the ability to help the lawyers explain the existence and significance of weaknesses to their own clients, in caucus. This is true even among lawyers who represent some of the most sophisticated business executives in the country. And, it takes more than just left-brain analysis. If sheer logic were enough, the lawyers could have done it on their own; after all, their analysis is more thorough and deep than yours. Simply pronouncing a judgmental “value” and expecting the parties to come to your number is not going to stimulate demand for your services, either. So, what is missing?
When lawyers perform due-diligence on mediators, they ask each other whether we mediators are good at figuring out ways to explain things to their clients that work better than the ways the lawyers were able to devise on their own. Or ways to assist and support the lawyers as they discuss strengths and weaknesses with their clients. Right-brain functioning, not exactly most lawyers’ stock-in-trade. It is not logic. It is not argument. It is not debate. Call it psychology, call it persuasion, call it empathy, call it what you will—it’s the ability to get on wavelength with people quickly, sincerely, and meaningfully. And it’s the talent that you need to earn the big bucks.
In a sense, it doubles back on itself. What allows you to get on wavelength? What creates rapport, communication, simpatico? The respondents agreed: it is not the wasting of time with war stories or excessive niceties. What earns a mediator the respect of others is a demonstration of thorough preparedness, leading to a customized approach to the case, and a respect for the parties’ time by getting down to the issues at hand (be they legal, financial, emotional, or otherwise) as soon as reasonably possible. In short, it takes a businesslike approach to business mediation.
Subsidiary Points: Preparation, Planning, Persistence Preparation
Read the briefs! Even if they whirr in by fax an hour before the mediation starts. Call the lawyers before the mediation, if at all humanly possible. Lawyers love this, and with good reason. It gives them the opportunity to tell you the things they are uncomfortable putting in writing. The things with which you need to deal insightfully.
Have a Plan
Make a customized plan. If a lawyer at this level thinks she is getting a cookie-cutter approach, it will be your last mediation with that lawyer. Develop the plan in consultation with the lawyers before the mediation day or, at worst, at the start of the mediation day. What format will work best in this mediation? Should you open with a joint session? A separate caucus with one side? An attorneys-only caucus? Something else? Of course, you will have to depart from this plan during the mediation. But when you have a plan, you will appear confident, in control, the master of the mediation process. And that’s one thing lawyers really want to see in you.
Lots of lawyers told me how disappointed they are if a mediator does not follow up with them after the mediation, when cases do not settle on the day of the mediation. Lawyers mentioned this with such frequency that they seem to have become accustomed to, and comfortable with, the idea that “mediation is a process, not an event,” as we mediators tell each other. They are accustomed to cases not settling on the first day of mediation. So, maybe it is ok for us mediators not to beat ourselves up so much when cases do not settle! In addition, I think this helps prove the distaste high-end lawyers have for heavy-handed “closing techniques.” If they wanted to be squeezed into settlements-for-settlements’ sake, they would not put this kind of emphasis on persistent follow up.
Okay, but How Do I Get My Big Break?
“Luck” has been defined as “The confluence of preparation and opportunity.” How can you generate your own luck in a crowded market for mediators? Play to your strengths! Here are some thoughts as to how you can do that in the mediation arena.
You are already part of a professional community of lawyers. When you become a mediator, you become more, not less, deeply involved in that community. Keep showing up at all those continuing legal education and networking events with other lawyers. Let them know that you are now a mediator. If your whole career has been in labor and employment law, market yourself as a mediator in that community. Those lawyers already know you and (hopefully!) like you. In the construction defect or patent law communities, for example, very few people probably even know who you are. Why should they give you a break? Also, when you finally do get a break (because a short-list mediator is not available on short notice and you are), you will be able to have the meaningful, substantive conversations on the merits that your new clients demand. How much less likely you are to perform adequately in an area where you never practiced!
“Show up” in all the ways you are accustomed, and stretch your comfort zone a little, too. What has worked for you before? Speaking? Writing? Schmoozing? It’s likely to continue working, redirected to the mediation arena.
“Show up” in the ways that others have done, when they have made a good impression on you. Think particularly about the expert witnesses and consultants you have hired. What marketing techniques of theirs made a particular impression on you? Adapt them!
Yet another reason why it is difficult to have a mixed litigation-and-mediation practice. You have to be available, especially at the beginning of your career, on short notice. How can you do that if you remain committed to a schedule of depositions, hearings, trials and other events that occupy a litigator’s life?
Just as in every other dimension of your life, you can’t be happy or successful by trying to be something or someone you are not. If you think you want to be a mediator because of burnout or because the work seems easy (which it is not), you are not likely to succeed. But if it seems to be “you” in some meaningful way—go for it! It’s a spectacular life.
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