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When It Comes to Mediators, You Get What You Pay For

Jeff Kichaven writes on mediation for the International Risk Management Institute. First published on

The relationship of court systems to the mediation field continues to change. The goal is to get cases settled whenever reasonably possible. But some courts, with the cooperation of bar associations, seem to be increasing their reliance on volunteer litigators as “settlement officers” rather than using fairly compensated, full-time, professional mediators to get the job done. It’s not going to work. The structure of mediation compels the conclusion that more cases will settle if the mediations are conducted by full-time professional mediators.

Two geniuses from disparate fields have given us the insights that make these conclusions clear. They are retired Los Angeles Superior Court Judge Robert I. Weil and the late Stanford Psychology Professor Leon Festinger.

Why Are Full-Time Professional Mediators More Effective?

Many years ago, I heard Judge Weil lecture on “Settlement Conference Advocacy” for the Los Angeles County Bar Association. He conducted settlement conferences full time for the court, and he was extraordinarily effective. He explained his philosophy of settlement conferences in terms so sensible that his wisdom has stayed with me.

“The settlement judge is the one person to whom lawyers can turn for help with their problems,” Judge Weil said. “When clients stop listening to lawyers’ good advice, when they stop paying their bills, when the lawyer’s life is becoming a living hell because a case or a client relationship is going south, the settlement judge is the one person who can help.”

“Lawyers don’t want to turn to their partners or professional colleagues with these problems,” Judge Weil continued, “because of fear of embarrassment. Who wants to confess their ineffectiveness to people who can adversely affect their compensation within a firm, or professional standing generally?” He went on, “You can confess to your family members without fear of professional embarrassment or retribution, but your family members lack the skill and the power to help.” Finally, Judge Weil added, “The client, who seems to you to be the cause of all these problems is the last one you want to talk to about it.”

To Judge Weil, that left the settlement judge—the one person upon whom lawyers could rely to keep their problems confidential, who had the skill to help, and the power as well. When he did his job well, and got lawyers and clients back on the same wavelength, that’s when cases would settle.

In those days, there was no such thing as “mediation,” and so Judge Weil spoke in terms of settlement conferences alone. But his sage words are equally applicable to mediation. In practice, mediators, too, get more cases settled when they focus on how to help lawyers deal with their problems. To do so, lawyers must believe that they can come clean with mediators, with no fear of having their candor exploited. That’s why court programs that rely on litigators to take turns mediating each other’s cases are not going to work.

Consider this example: The court selects Lawyer A, an intellectual property specialist and partner in Firm X, to mediate a patent case in which Lawyer B, also an intellectual property specialist, from Firm Y, represents one side. Firms X and Y compete for the same clients. Lawyers A and B are from time to time opposing counsel.

In preparation for the mediation, A calls B to chat about the challenges they will face in the mediation. B would love to tell A the truth: that he is having a hard time with “client control” issues. Internecine conflict within his client’s organization is spinning out of control, and he is barely able to get clear instructions in a timely fashion. He can’t figure out how to get along with the client representative with whom he most often deals. Nobody within the client organization takes him seriously when he tries to explain the manifest weaknesses of the case; they are just too angry at the former employees who are now their litigation adversaries. He has blown through a substantial retainer and has serious concerns about whether his firm will continue to be paid. And because of high associate turnover, some discovery issues were not handled as well as they should have been, resulting in the judge viewing him and his client as the “bad guys” in the litigation generally.

Fanciful? Exaggerated? Preposterous? Not at all. Lawyers confide things like this in me, and other mediators in whom they have confidence, all the time. Mediations work better and more cases settle when we know what’s really going on and can address our efforts to the real problems. Why do lawyers have the confidence to acknowledge these secrets to full-time professional mediators? Because there’s no fear of exploitation. We can’t use the information against them in other contexts, as they fear their law partners or other professional colleagues might.

What if we are not full-time professional mediators, but rather partners in competing law firms? Macy’s doesn’t tell Gimbel’s as the old saw goes, and it would be just as unrealistic to expect lawyers to tell these secrets to their competitors. Imagine how this kind of information could be exploited in competition for clients, or, worse, the next time these two lawyers end up as opposing counsel.

Without this kind of information, mediators cannot function at their highest levels of effectiveness. Fewer cases will settle. The structure of mediation dictates that this is so. If the goal is to get more cases settled, courts and litigators alike should rely on full-time, professional mediators.

Why Are Fairly Paid Mediators More Effective?

Several years ago, one of California’s most prominent jurists told me that he had figured out the real purpose of mediation. His conclusion? “Mediation,” he said, “is the place where good lawyers go to regain lost client control.”

I was aghast. This is not the sort of thing I had been taught in mediation training! But the more I mediate, the more I see merit in what this jurist said.

Much of what commercial mediators do is helping good lawyers with client control issues. And it’s generally for the good. We help clients adjust unrealistic expectations, accept the limited extent to which a litigation “victory” can change their lives, and balance their views of the risks, costs, and benefits of various litigation and settlement options. The clarity that results from the exercise generally results in a settlement that serves the client’s best interests.

It’s not easy to help lawyers break bad news to their clients. The clients resist! But for clients to reach appropriate settlements, it is vitally important that mediators be effective in this task. Social psychology research shows that mediators will be inherently more effective when fairly paid.

Many years before I heard Judge Weil’s wisdom, I took Psychology 101 as a college freshman. One of the few things I remember from that class was Leon Festinger’s “Theory of Cognitive Dissonance,” and specifically the phenomenon of “Effort Justification.” The classic experiment in “Effort Justification” compared fraternity members who had been through different levels of hazing in initiation processes. The research showed that the more rigorous the hazing, the greater the loyalty to the frat. When membership was more “costly,” it was more highly valued and respected.

“Effort Justification” shows why courts and litigators should want mediators to be fairly paid by their clients. The mediator’s job is, in material part, to help lawyers break bad news to their clients. It is in the interest of courts and litigators, who want cases to settle, for the clients to believe what the mediator says. Clients will have greater faith in mediators if they have exerted greater effort—incurred greater cost/paid more—to get the mediator’s input.

As psychiatrist Mark Goulston, author of “Get Out of Your Own Way: Overcoming Self-Defeating Behavior,” explains, “It’s just common sense that the more you pay for something, the more you value it. The more you pay, the wiser you want to feel for having paid it. If you’re paying a large amount, something inside you will very strongly want to believe that what you are getting is worth it. You want to feel that you have spent your money wisely. So you attribute value to a service in direct proportion to what you have paid for it.”

The best commercial mediators understand that, to get cases settled whenever reasonably possible, they must earn the confidence of litigators and help those litigators bring their clients’ unrealistic expectations down to Planet Earth. Mediators can best accomplish these tasks, and get more cases settled, if they are full-time professionals and fairly paid for their work. Court systems and bar associations should respect these economic and psychological realities.


Jeff Kichaven

Mr. Jeff Kichaven is one of California’s leading mediators of insurance coverage and bad faith cases. He practiced business litigation for over 15 years before he began his full-time mediation practice in 1996. Today, Mr. Kichaven mediates approximately 200 cases per year. Mr. Kichaven also has a distinguished record of… MORE >

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