Bar Journal - Summer 2005
“Mediator” Is an Action Noun
By: Attorney John Burwell Garvey
Action Steps for Conducting an Effective Mediation
I. The Purpose of Mediation
There are various reasons why lawyers and their clients choose to mediate. Some lawyers want to obtain cheap discovery; some just want to wear down the other side and see how low they will go. Others do it because it has been ordered by the court.1 These reasons raise issues, including ethical considerations, which are not the focus of this article. Instead, this discussion will examine mediation as a process used to “assist people in reaching a voluntary resolution of a dispute or conflict.”2 This definition — and this article — assumes that the mediation is voluntary and entered into in good faith, with the purpose of resolving the conflict. This article will describe the process that an effective mediator uses in assisting the parties to reach voluntary resolution.
Although the definition I have chosen may seem obvious and straightforward, an examination of3 its key words, as background to the discussion that follows, is instructive:
This is the verb that makes “mediator” an action noun. The person doing the assisting is the mediator. This is an active role.
Mediation is not about money, but about people. People decide whether they wish to settle or to fight. The mediator must focus upon assisting the people. This can be complicated and involves a lot of action.
Reaching means, “to stretch out or put forth.”4 The mediator must assist people in a way that causes them to reach out to a place where their interests intersect with the interests of the other people involved in the dispute.
“Self-determination is a fundamental principle of mediation.”5 The mediator creates a process and an environment that allows the parties to realize that they would rather reach for the common ground than continue the dispute. This is usually one of the most difficult tasks for the mediator. Although settlement must be voluntary, this almost never occurs without concerted action from the mediator. After all, the parties must change their positions in order to reach the place where their interests intersect.
In this context, resolution means “to find a solution to; to answer.”6 The mediator must explore the case with the parties in a way that allows the parties to find an answer to the dispute that works for everyone. To the fullest extent possible, the mediation must focus on resolving the needs of all the parties, rather than upon winning and losing. In this context, the mediator must always keep in mind that there are many different needs to be considered – even when there are technically only two parties. For example, the straight forward two-”party” auto case always has a plaintiff and a defendant, but also usually has a spouse, an insurance adjuster, all of the people up the insurance adjuster’s chain of command, the insurance company itself, and at least two lawyers. The skilled mediator attempts to create an environment that allows for all of the needs in and out of the room to be considered.
F. Dispute or Conflict
If the parties were in agreement, they would not need a mediator. One of the mediator’s jobs is to figure out what is in dispute and what is not. Surprisingly, many parties who have been unable to reach a voluntary resolution without the assistance of a mediator do not have a clear understanding of where the fight is.
Let us assume that the parties have reached a point in a dispute where they agree that it is a good idea to seriously explore the possibility of settlement; however, they are presently unable or unwilling to reach a settlement agreement on their own. They do agree that mediation would be a good idea, and they agree on the selection of a mediator. The mediator receives a call inquiring as to availability.
A. Conflict clearance
The mediator must first identify the parties, the lawyers, and the basic issues in dispute. Although he does not face the same conflict analysis as a lawyer representing a client or an arbitrator sitting in judgment, the mediator must be prepared to make a full disclosure to all parties of any matters that could reasonably cause a party to question the mediator’s neutrality.7 Before proceeding, he should make a full written disclosure to the parties and should give all parties a chance to decline the engagement — without embarrassment — if anyone is uncomfortable with proceeding. Since mediation is a voluntary process designed to lead to a voluntary resolution of a conflict, a mediator cannot force himself upon the parties, and there is no recusal motion needed as there would be with a judge; however, if the mediation is to accomplish its purpose, it is incumbent upon the mediator to project an attitude of transparency and respect for the parties and the process. The tone set by the mediator during the initial engagement is an important first step of the mediation process.
B. Initial action
Once the mediator has been engaged by the parties, he should begin gathering information. Generally, the parties will submit mediation packages, which provide the basic information, including applicable pleadings, and the “official” position of the submitting party. These are useful, but are advocacy pieces and do not provide the information that is often most helpful to the mediator. When possible, it is desirable to have the parties also submit confidential memos to the mediator, wherein they can be more candid about their concerns. This is specifically provided for in the federal setting and can be used in other venues as well.8
In my experience, even the confidential submissions are usually advocacy pieces. Very few lawyers trust the mediation process to the extent that they will tell the mediator in the opening round exactly what they (or their clients) need to accomplish. Regardless of how it is described by the party making the submission, a mediator should never look at the confidential submission as a “bottom line”; however, it will often provide clues as to where the fight is and what the needs are – particularly when it is compared to the submissions of the other parties.
C. Preliminary discussions with lawyers
Whenever possible, the mediator should speak individually with the lawyers before the first mediation session. Initial private conversations allow for the building of trust and candor and allow the mediator to obtain information that he would probably not obtain in a session where all parties are present, or even in a private setting where only the lawyer and client are present. The mediator can start by asking open-ended questions that enable the lawyer to talk about the case in a way that will provide the mediator with more clues about where the fight is. During this phase, the accuracy of the information conveyed by the lawyer is secondary to the importance of the perspective it provides to the mediator. This is not to suggest that the lawyer would or could ethically provide knowingly false information. However, since trained advocates usually tend to advocate, the mediator always needs to discern and distinguish agreed upon fact from an advocated position.
The following questions, phrased to fit the mediator’s own personality, usually yield helpful responses:
1. “What’s this case all about?” As mundane as this sounds, this broad question gives the lawyer a chance to describe the dispute on her own terms, and gives the listening mediator a chance to probe further with more specific follow-up questions that will help to narrow the issues and determine what key players must be physically present at the mediation.
2. “Do you have any concerns or are there any issues that I should be aware of with respect to your client?” If there are client control issues, such as unreasonable expectations, extreme anger, distrust of the process, dislike of the other party, etc., this gives the lawyer a chance to bring them out in response to a question, without appearing weak or defensive. Also, the mediator can determine whether the case is highly charged with emotion and whether an apology is important and even possible. (The potential value of an apology is discussed further, below).
3. “Do you know yet whether you will have your client speak in the general session?” This is an important consideration at the mediation – particularly for the plaintiff. Many times, an insurance adjuster has not previously met the plaintiff, and the mediation can have an important impact on perception. This question puts the issue out there as a matter that counsel must consciously decide.
4. “Do you have any concerns or are there any issues that I should be aware of with respect to the other party (or parties), or with respect to any of the players?” This question is intended to elicit concerns involving perceived problems with other lawyers, insurance adjusters and their companies, party spouses, etc. One lawyer may have concerns about another lawyer, based upon prior dealings. An insurance adjuster may have had a prior bad experience with counsel for the plaintiff, or vice versa. The parties to the actual dispute may have a prior history that is critical to an understanding of the dynamics of the mediation. The plaintiff may be suing her old (former) friend who was driving the car or who owned the property where the injury occurred. In some cases, the defendant is a spouse or parent of the plaintiff and was driving the car when injury occurred. The defendant may have a financial interest in the plaintiff’s case, and the insurance company may be resisting on the merits. The parties may be former business partners, former spouses or lovers, or neighbors. Whatever the various relationships, the mediator must probe to understand the nuances.
5. “How long do you think we need for the mediation?” This question is important for planning, but also opens the door for further discussions about parties, problems, and nuances. This is a good time to find out how far negotiations have already progressed, if at all. If there are multiple defendants in a personal injury case, the mediator should try to learn whether the defendants already have an agreement regarding their percentage of contribution, whether liability is still being contested by some or all defendants, whether there are contribution and/or indemnity issues, and whether there are differences of opinion on valuation issues vis-a-vis the lawyer and the carrier. In answering these questions, the lawyer often provides important information to the mediator regarding where the fight is.
6. “Do you have a preference for mediation location?” Depending upon the facts of the case, location may be a strategic issue. For example, counsel may want to be where her client is most comfortable, or may want to be somewhere where they can leave if the mediation doesn’t proceed to their liking.9
7. “Do you need any particular facilities for the mediation session?” Wheelchair access may be an issue. The lawyer may want to make a presentation with charts, PowerPoint, video, etc. A viewing screen, large monitor, or other audio-visual equipment may be desired. If the mediator is providing the facilities, this is the time to make sure that he has appropriate space and can provide whatever is required. If other space is being used, this is when the mediator makes sure that the facilities will be adequate for all of the parties by coordinating with the host facility. In this respect, the mediator assumes the role of a stage director – making sure that the stage is set to create the right atmosphere.
8. “Is there anything else you think I should know before we get started?” This question encourages the lawyer to open up with any issues that she may be holding in reserve. The private, pre-mediation telephone discussions with the lawyers are an important part of the mediation process. Mediation usually involves emotional issues, even when the central discussion appears to be about money. A mediator who is not sensitive to the emotional issues can unwittingly destroy the mediation environment. It is the mediator’s job to identify the “issues behind the issue” so that the parties and their representatives feel heard, and so the mediator can carefully and intentionally create an environment that will assist the parties in reaching a voluntary resolution of their dispute.
D. Review of any applicable law
Before the first mediation session, the mediator needs to review any applicable statutes, regulations, and cases. Although he should not practice law in the mediation,10 he must be able to ask the right questions when probing the positions of the parties. Also, he needs to be able to understand the basic law that is being relied upon to advance or defend the dispute. In doing this, the mediator should remember that the law is not the basis for the dispute, but is the legal remedy being applied for the wrong complained of. For example, a medical remedy for a broken arm may be a cast. The legal remedy may be money. Regardless of the remedy, it’s about the broken arm.
E. Physical arrangements for the mediation session
As noted above, the mediator needs to ensure that the space and amenities are appropriate for the mediation. He should make sure that someone will provide at least water, coffee, and clearly marked decaffeinated coffee. (Nothing is more difficult than mediating with a person who accidentally drank the high test!) If the mediation will include the lunch or dinner time, arrangements for ordering out are desirable.
The rooms should be as comfortable as possible. The mediator must make sure there are enough rooms (and chairs) to accommodate the parties. The number of rooms and the assignment of particular rooms is often a specific strategy decision that should be made by the mediator. Because the parties will end up in private sessions with the mediator, it is usually best to have a separate room available for each party. However, if there are multiple plaintiffs or multiple defendants, there may be reasons why it would be best for them to share a room. For example, there are times when the tension between two defendants and their carriers is desirable, and should be explored with them together; there are also times when two defendants have the same general interests and goals and have already worked out a contribution allocation between or among them. In cases involving multiple plaintiffs and limited insurance coverage, it may be important for the plaintiffs to be in the same room to participate together in the private mediation sessions, much like joint defendants.
Unless there are particular reasons to keep particular parties together throughout the mediation process, the best alternative is to have a room available for each party; in this way, the mediator can decide to start two parties together, but can still separate them if it becomes desirable. My biggest challenge to implementing this procedure came in a case involving 12 parties, including a plaintiff, numerous defendants, carriers, counsel to the carriers on coverage issues, personal counsel to the defendants, personal defendants, and a worker’s compensation carrier that was found responsible for the injury as work related but was appealing the decision to the supreme court. On that occasion, instead of one party to a room, I sorted them based upon their strategic interests, which still involved a lot of rooms. Without the many separations, the mediation would not have been successful, since candor with the mediator could not have been achieved with “competitors” in the room.
Whatever decisions the mediator makes on room assignments, those decisions must be conscious ones made before the mediation session ever occurs so that the mediator can take charge of the mediation and direct the parties to the chosen “break out” rooms before the first general session.
F. The initial mediation session
Whether the mediation is at the mediator’s facility or somewhere else, the mediator should be there in time to confirm that the rooms are ready and the beverages are available. He needs to know where the rooms and public facilities are so that he can take charge and make everyone feel welcome and comfortable. As people arrive, he can meet them, introduce himself, orient them to the physical layout that will be used, and direct them to the room he has chosen for them.
When all of the parties have arrived, the mediator can direct the separate parties into the main conference room that will be used for the general “all hands” session. In my experience, parties are not ready to be physically close at the opening session, and generally arrange themselves across from each other. The mediator should not try to force “togetherness” and should allow the parties the distance they feel they need, as long as everyone is in a position where they can see and hear. In most cases, most of the participants will be professionals who have mediated before; however, the plaintiff is usually a novice, as are many defendants. The mediator should project a friendly, welcoming demeanor, and must always be conscious of the fact that the plaintiff and any defendants are almost always ill at ease – at least initially. While doing this (and at all times), it is critical that the mediator be authentic and sincere. Personality differences dictate that mediators will have different styles, but the basic process described in this article is very important.
The mediator should position himself in the center of the assembled participants; he should avoid taking a chair that would be at a higher elevation or that would be considered a chair of more status than the others at the table. For example, when mediating in a courtroom setting, he should sit with the parties, and not on the bench or some other elevated position. Likewise, the mediator’s chair should not have arms unless the others do, nor should it have a taller back. The mediator’s role is one of deft facilitation, which is difficult to accomplish if he begins the session in an authoritarian posture.
The mediator should begin the session by making sure that the participants introduce themselves and explain their roles. Except in very unusual circumstances such as cases involving allegations of physical abuse or other deeply personal matters, where physical contact would be too painful or inappropriate, the mediator should time the introductions in such a way so that the participants can shake hands without having it be awkward. (Once they are facing each other across the table, it is often an awkward reach.) This is easy to accomplish when the mediator brings in the plaintiff group(s), followed by the defendant group(s), and has them shake hands as they enter the room, and before they take a position at the table. Unless the mediation involves a party from a culture where the handshake is considered inappropriate, this is an important ritual that allows for physical touch and eye contact. In my experience representing parties, I have had more than one case where my client has expressed his distaste at the thought of shaking hands with the opposition, and has vowed that it would not happen. When we have arrived at the mediation and the handshake ritual has taken place, the other hand has always been shaken, and the act has silently become the first supposedly intransigent position from which my client has departed on the road to reasonable compromise.
Right after the introductions, the mediator should sketch the shape of the table on a piece of paper and put his name next to where he is sitting. Instead of filling in all of the names and the seating positions, he can then circulate the paper around the table, asking each person to put down his or her name and role at the mediation, and tell the group that a copy of the completed diagram will be given to each person at the table. This simple act of participation is the first thing that the group accomplishes together, and each person’s handwriting winds up on the same piece of paper – just like a settlement agreement. Also, the document is a useful reference, since the mediator should address and refer to people by name, and not by category, (e.g., “Mrs. Smith,” not “the Plaintiff,” “Attorney Jones,” not “Defense Counsel,” etc.)
Opening remarks by the mediator
Once the seating chart has been copied and distributed, the mediator should formally begin the mediation session with introductory remarks, paying particular attention to participants who are new to mediation. Remarks should be aimed at providing a framework of safety and fairness for the upcoming discussions. Some mediators use a script, but I prefer to tailor the remarks to the group assembled. As noted above, I try to mention the participants by name rather than by category of “plaintiff” or “defendant.” In the opening session, I generally do not refer to people by using first names, although this may be appropriate and even helpful later, after rapport has been established.
On page 11 are typical comments that should always be included in substance in the mediator’s opening remarks. For simplicity, I have phrased the comments as though there are only two parties to the dispute.
Opening remarks by the parties
After he has finished the opening remarks, the mediator should invite the first party to speak. This is usually counsel for the plaintiff, but the mediator should consider the particular facts and the dynamics of the case. For instance, I had the defendant speak first in a case where the plaintiff’s claim was dwarfed by the counter-claim.
The mediator needs to be in a state of heightened vigilance when the parties begin to speak, because this initial exchange can set the tone for the mediation. If the statement becomes personally negative or strident, it can make settlement much more difficult or even impossible. I have had situations where a major focus of the mediation has been to calm feelings that flared and were exacerbated by intemperate remarks made in the opening statements. If that happens, even after the mediator has cautioned against it in the opening remarks, he must promptly decide whether to interrupt the speaker and enforce the ground rules. This is a judgment call, but the decision should be a conscious one.
If the mediator has already had the initial conversations with counsel, discussed above, he will thereby know something about the people and the dynamics in the room. For example, if plaintiff’s counsel is speaking, the mediator may realize that strong statements are being made because the plaintiff has a lot of rage, and the plaintiff’s counsel believes that some expressions of anger are necessary in order to allow the plaintiff to feel validated and represented. If this is something that has been discussed in advance with the mediator, he may even have alerted the defense counsel to this likelihood. A decision on whether to intervene will depend in part upon the mediator’s evaluation of the other participants in the room and the likely effect of the comments upon them. He must be conscious of the fact that comments in the mediation are often made for various purposes and are directed to various participants, with differing effects. The mediator must be a very active listener and must separately consider the effect of comments from the perspective of the speaker and each of the other listeners.
If the mediator decides to interrupt, word choice is important. He has just declared his neutrality, and his actions must bear that out. At the same time, he cannot afford to lose control of the proceedings. If he is not careful in his remarks, he can easily alienate one or more of the participants. If possible, the words should acknowledge the feelings without appearing to take sides. For example, take the case where Attorney Smith, counsel for Ms. Plaintiff, has just said that Mr. Defendant was “outrageous and even criminal.” The mediator may choose to interject with, “Attorney Smith, I can see from your comments that Ms. Plaintiff is very angry about what has happened. Her feelings are important, as are the feelings of the defendant, but I think it would be most helpful for now if we concentrate on the facts and on what has happened to Ms. Plaintiff. Would that be O.K.?” With a statement like this, the mediator has rephrased an accusation (“Mr. Defendant is an outrageous criminal”), has transformed it into a statement of feeling (“My client feels that Mr. Defendant’s conduct was outrageous and criminal”), and has redirected the conversation to focus on the facts and on what has happened to Ms. Plaintiff. He has ended the comment by asking permission to proceed on that basis, rather than by demanding it. The plaintiff’s feelings have been acknowledged, as well as the defendant’s. The mediator has remained neutral but has gently steered the course.
As noted above, the first presenter is almost always counsel for the plaintiff. When she has finished, the mediator may ask if the plaintiff is going to speak. (If the mediator has been told during his preliminary inquiry for the mediation that the plaintiff will not speak, this question should not be asked, and the opening comment about the possibility of the plaintiff speaking should not be made). If the plaintiff does choose to speak, the mediator must be on high alert; sensitivity in the event of an interruption is even more critical. If the plaintiff perceives that she has been “cut off” by the mediator, it will be much harder for the mediator to gain the confidence and trust of the plaintiff. Conversely, if the mediator allows the plaintiff to vent inappropriately, the negative defense reaction may be irreparable.
When the plaintiff’s presentation is complete, counsel for the defense will begin. Depending upon the case, this can be a critical time for the success of the mediation. If an apology is going to be offered, this is usually when it occurs. If the mediator knows from preliminary questioning that this is likely to happen, he should encourage the defense lawyer in advance to make the apology directly, in simple English and not legalese. Apologies that sound insincere or technical are often counterproductive. If the defense lawyer believes that her client is able to make the apology personally, that is often better. The eye contact between the parties and the spoken words can be powerful healing medicine for both the plaintiff and defendant. I participated in mediation where a doctor personally apologized to the patient for missing a cancer diagnosis. Both sides were crying, and it was a critical moment. The plaintiff patient’s anger vanished, the spouse’s anger diminished substantially, and the defendant doctor had a chance to make a heartfelt statement directly to the former patient. The case had initially looked like it would never settle, but did, with relative ease, after the apology. More importantly, the plaintiff forgave the doctor, which allowed both of them to find peace. It was a very moving experience that began with the power of the sincere apology.
The mediator should look for opportunities to privately encourage the offering of a sincere apology and should caution against offering anything less. If an apology is not possible or appropriate, he can still encourage expressions of empathy. If the defense disputes liability but agrees that the plaintiff was seriously injured, defense counsel can acknowledge the injuries and say that she and her client are both sorry for all that the plaintiff has gone through. Even if the defense disputes liability and the extent of the injury, defense counsel can still say that she and her client are sorry for all that the plaintiff has gone through. In the pre-mediation discussions, the mediator should tactfully discuss this issue with the defense counsel in order to encourage the best possible overture.
In addition to any apologies that may be made, the defense presentation usually includes “reality check” information that may be hard for the plaintiff to hear. The skilled defense counsel understands that the opening session is a unique chance to speak directly to the plaintiff about why the defense view of the case differs with that of the plaintiff. This is often the first time that the plaintiff gets a chance to see the defense counsel as an advocate and to hear the defense much the way it would sound to the jury. This can be a very helpful process, but the mediator must again be vigilant in the event that comments get personal. Also, as with the comments presented by the plaintiff’s counsel, the mediator must be a very active listener so he can discern the messages that are being transmitted.
If there is more than one defendant, then the mediator should generally allow each defendant to speak in turn, before returning to the plaintiff. This is subject to the facts and the dynamics in the room, but the mediator must keep control of the process.
Summarizing the areas of agreement
When all of the defendants have made presentations, the mediator should ask the counsel for plaintiff whether she disagrees with any of the new facts stated by the defendant(s), as distinguished from conclusions. If there are factual disputes, counsel for the plaintiff should explain; however, further discussion by the parties on the merits of their respective positions is generally unproductive, unless the discussion centers on a misunderstanding about facts. The mediator should go over what he has heard at this point and ask any questions that he has regarding the facts, and try to reach an agreement by the parties on all of the facts that are not in dispute. By breaking up the facts into small pieces, the mediator is likely to get more agreement. I often include facts that are not particularly critical to the case, because the process of working together to reach agreement is important. Also, as the parties agree on more and more, the items left in dispute seem more manageable. For example, in a typical auto case, the mediator might say:
“Let me see if I understand the facts. Does everyone agree that the accident occurred on May 1, 2004? (Yes).
At the corner of School Street and Main Street in Concord, New Hampshire? (Yes).
At about 5 p.m.? (Yes).
It was light outside? (Yes).
It was a sunny day? (Yes).
The pavement was dry? (Yes).
Mr. Plaintiff was a pedestrian? (Yes).
Mr. Plaintiff was walking on the sidewalk on Main Street in a southerly direction? (Yes).
Mr. Plaintiff began to cross School Street? (Yes).
Ms. Defendant was driving a blue 1998 Volvo S-70 four-door sedan? (Yes).
Ms. Defendant was driving north on Main Street? (Yes).
Ms. Defendant turned left to go onto School Street? (Yes).
At some point after Ms. Defendant began her turn, her car struck Mr. Plaintiff? (Yes).
Mr. Plaintiff was injured? (Yes).
An ambulance took him to Concord Hospital? (Yes).
He had surgery for a displaced fracture of his femur? (Yes).
He was in the hospital for 3 days? (Yes).
He was out of work for 2 weeks? (Yes).
His total medical bills to date are $17,512? (Yes).
His average weekly wage is $700? (Yes).
Dr. Blue has issued a report that says that Mr. Plaintiff will have permanent limitations? (Yes).”
The mediator would continue asking the “agreement” questions until he had thoroughly listed all of the points of agreement. In order to do this effectively, the mediator must state the facts neutrally. For example, “her car struck Mr. Plaintiff” is less personal than “Ms. Defendant struck Mr. Plaintiff.” “An ambulance took him” is better than “he needed an ambulance to take him.” The goal is to reach agreement on as much as possible. Of course, if liability is not in dispute, the list can be short and general on that part of the case, and much more incremental and detailed on the damages portion.
Summarizing the areas where there is not yet agreement
After the list of agreement has been completed, the mediator should focus the parties on those facts for which there is no agreement. Turning again to the example above:
“Now, let’s go over those facts where we don’t yet have agreement. As I understand it, the parties don’t presently agree on whether Mr. Plaintiff was in the crosswalk? (Correct).
And on whether Ms. Defendant was talking on her cell phone? (Correct).
And on whether it was medically necessary for Mr. Plaintiff to miss two weeks from work? (Correct).”
As with the list of agreement, the mediator continues to compile the list of non-agreement until it is complete. However, he only lists facts that are directly relevant to resolving the dispute. Again, word choice is important. In the example above, the mediator refers to facts “where we don’t yet have agreement.” Although agreement on all facts is not necessary to reach settlement, there is no benefit in solidifying positions. The points of contention are stated without accusation. This allows the parties to reach agreement even on the disagreement.
When the parties have finished the task of categorizing the facts as “agreed” or “not yet agreed,” the mediator should congratulate the participants to the fullest extent possible. The focus should be on all that has already been accomplished and the good faith that it took everyone to get there. He should explain that the opening session has been very helpful and that he is now going to explore some issues privately with the participants. At this point, the mediator will have the parties go to the private session rooms. If there are enough rooms, it is preferable to have the main session room remain open after the session, in case another full session is required. It is better to have a room that is “neutral” to everyone for that purpose. If there are not enough rooms to do that, my preference is to keep a defendant in the main room, and to have the plaintiff in another room. Whenever possible, I want to give a plaintiff the feeling that she has a physical place in the mediation process that is hers and that is private. This enhances trust and candor in the sessions that follow.
G. The private sessions
The mediator must decide whom to meet with first. I will usually meet with the plaintiff and her counsel to establish some rapport and to allow the plaintiff to debrief a little from the stress of the opening session. Most plaintiffs have never mediated before and come to the mediation with a fairly high level of stress. The mediator can ask questions about the plaintiff’s background and encourage her to talk about herself and about things that interest her — try to get to know her better and to understand what motivates her in life and in the case she is mediating. This is a very important part of the process and usually takes awhile. I try to avoid talking about money until we have talked about a lot of other things. Eventually, when initial rapport has been established, I talk about money and whatever else is involved in the demand.
I encourage the plaintiff to talk about her feelings and try to draw her out. In this private and controlled environment, it is permissible and often helpful if she gets angry and calls the defendant names. I discuss the mediation process and explain the likelihood that the first round of negotiations will be frustrating and nowhere near what the plaintiff wants for a resolution. I explain that the process is not over as long as people keep talking. I tell the plaintiff that the case may or may not settle, but that she should try to find out how far the defense is willing to go, and that the only way to find out what the defense is willing to do is by demonstrating an openness to compromise.
The mediator must not push for settlement, because that would be inappropriate and counterproductive. The best settlements arise when the parties choose to settle because they seriously consider the alternatives and find settlement preferable. The first private session is designed to create an atmosphere that will encourage serious consideration. Normally, I do not attempt to elicit a demand from plaintiff’s counsel in the first session. Instead, I talk primarily to the plaintiff, give her a better sense of how the mediation process will progress, and assure her that I will do my best to keep the parties talking constructively. I usually finish by saying that I will go talk to the defense now, in an effort to better understand their point of view.
As noted above, the actual defendant is sometimes not present during the mediation. In auto insurance cases, the defense team usually consists of the adjuster and the lawyer for the defendant. This is a different dynamic than when the defendant, who has been accused of doing something wrong, is present. When a defendant is physically present, the mediator should proceed in the same manner as with the plaintiff. The defendant will normally be stressed and will often feel alienated from the legal process. He is often angry at the “sleazy plaintiff’s lawyer” who filed the lawsuit and at the system in general. Before getting to the substance of the case in the private session, the mediator needs to talk with the defendant, listen carefully, and offer nods and other body language to show he is listening and to develop rapport. As with the plaintiff, this is a good time to allow the defendant to vent, and expressions of anger are allowable and often helpful. When rapport has been established, the conversation should transition to the facts of the case, and the lawyer and adjuster should be drawn more into the discussion, which will be described below.
When the defendant is not present in the mediation, it is still important for the mediator to establish trust, confidence and rapport with the defense lawyer and the insurance adjuster. If the mediator has worked with these professionals in the past, this is not difficult, and it is just a matter of getting “caught up.” If there is no prior experience, it is important for the mediator to spend some time getting to know the lawyer and the adjuster, to build rapport, and to get a sense of their personalities and how they approach problem solving.
Once rapport has been established, the mediator should begin to discuss the case. The mediator should avoid offering opinions about the merits of the case, but should ask questions that focus the discussion, such as:
1. “What did you think of the plaintiff?”
2. “How do you think a jury will react to her?”
3. “How do you feel about Attorney Smith? Will she do a good job for Mr. Plaintiff?”
4. “How far along are you on discovery? If the case doesn’t settle, what do you estimate as your costs through trial, including experts?”
5. “What do you see as your weakest points in this case?”
6. “If you tried this case five times, how many times would you win it?”
In asking questions like the ones above, the mediator introduces the element of risk into the discussion through the answers of the defense. Most often, the defense will acknowledge that the plaintiff will make an average to above-average witness, and that the lawyer will do at least an adequate job. If the plaintiff made a favorable impression or if the lawyer is well regarded, that will usually be conceded. The defense will usually acknowledge some weakness in the case, which leads to a realization that the case could be won by the plaintiff. I have not yet met the lawyer who will say in front of a client and/or adjuster that she will win the case five times out of five, nor have I met the adjuster who will make that prediction to her supervisor! Even if the prediction is that the plaintiff would only win one out of five times, the defense lawyer certainly doesn’t want this to be the one time. If the prediction is that the plaintiff will probably win more often than that, then the danger of the case is underscored. The goal is to get them thinking about risk. (This process is later repeated with the plaintiff).
After the risk of loss has been discussed, the mediator should ask about potential damages. The mediator can ask questions about the various claims and about how the jury is likely to react. The mediator should avoid questions that force the defense to take an inflexible position. For example, rather than asking the defense how much the case is worth, the mediator can ask a question along these lines: “If you tried this case five times, what do you think the range of verdicts would be?” If the answer is candid, the range given will usually go from a defense verdict (zero) to something that is substantially more than the defense is willing to pay, and that would certainly be viewed by the defense as a defeat. At this point, the mediator can ask whether the defense lawyer thinks that it is possible that a verdict could possibly go even higher. Most experienced lawyers will admit to the possibility. (This process is later repeated with the plaintiff).
Whether or not the plaintiff has made a demand, the mediator can begin discussions about a first offer from the defense. In my experience, most plaintiffs’ lawyers, defense lawyers, and insurance adjusters initially bargain from a positional approach, which means that they start with a fairly extreme position, argue for it, and then make incremental moves back and forth until they reach a compromise.11 This type of negotiation is sometimes referred to as a zero sum approach, where the parties see the pie (which in insurance cases is usually the policy limit) as fixed, and they argue over how much of the pie each will receive (or keep). As will be discussed later, the mediator needs to look for opportunities to modify the course of the negotiations so that they become integrative negotiations, where there is room for creativity and collaborative problem solving.12 However, in the early stages of the negotiation, the mediator should be aware of the fact that the parties are probably starting from positions that are extreme.
Because both sides usually commence negotiations with positional bargaining, there is often a lot of time spent establishing first demands and first offers. Even though the case can be evaluated based upon the facts without regard to the plaintiff’s initial position, the defense usually wants the plaintiff to make a “reasonable” demand prior to making an offer. Likewise, the plaintiff usually wants the defendant to make a “reasonable” offer before serious negotiations begin. Positional negotiators often assume that the parties will eventually meet in the middle or somewhere near it, so they want the midpoint between the first demand and offer to be within the range of where they are willing to go. Also, they want the other party to go first, because each “turn” requires a change of position, so there is a perceived advantage to going last. For example, if the plaintiff first demands $100 and the defense then offers $20, the plaintiff is expected to make the next, further downward, move; if the defense makes an opening offer of $20, and the plaintiff then demands $100, the defense is expected to make the next, upward, move. If each party makes the same number and size of “moves” the midpoint between the $100 demand and the $20 offer is $60, regardless of who goes first. However, a lot of time is often consumed on this tactic in the mediation, and the mediator needs to be conscious of what is occurring.
In my experience, many mediated settlements actually occur in ranges that fall substantially to either side of the midpoint, but this is an early concern for most negotiators that cannot be fully overcome. There is a tendency to believe that the first round actually establishes the benchmark for settlement, so parties will often negotiate at this point as though they are negotiating for a final number. The mediator must guide the parties through this stage with patience. If the mediator pushes or cajoles for an opening bid, he will inject himself into the process in a way that could later backfire. Instead, the mediator should again ask questions of the parties to test their positions, such as:
1. “What do you think the defendant’s (plaintiff’s) response will be if I take him that number as your first demand (offer)?”
2. “Do you think the defendant (plaintiff) will see this as a serious demand (offer)?”
3. “Is there any message that you are hoping to send with this demand (offer)?”
4. “Do you think that this demand (offer) will send that message?”
Although it often takes substantial time, the mediator usually receives a demand or an offer that appears calculated to move the case forward. When that does not happen, the mediator needs to break the logjam, and there are various techniques. He could ask counsel for the plaintiff what a reasonable opening offer would look like, which we will call “X.” With that information, the mediator could then ask the defense counsel what a reasonable opening demand would look like, which we will call “Y.” The mediator could then ask defense counsel whether she would offer “X” if counsel for the plaintiff will demand “Y.” If defense counsel agrees, then the mediator tells counsel for the plaintiff that she will get the opening offer that she is looking for, if she will demand “Y.” This usually works, since both parties begin by getting something that they want, and both parties realize that both positions will require further movement. If the parties then want to debate about who makes the next move, the mediator can show them that it makes no difference, even assuming a midpoint settlement, as shown by the following chart:
Once the parties start moving from their original positions, the negotiation rounds usually move more quickly. During this part of the process, the mediator needs to provide encouragement to both sides as they continue to negotiate. Most importantly, he should use the conversations during these rounds to explore what non-cash aspects of settlement might be significant to the various participants. This is where he gently steers the parties from positional negotiation to integrative negotiation. There are often items that can be extremely important to one party but which will not cost the other side any money. For example, in an employment case, the plaintiff will often want a letter of recommendation. In a sexual harassment case, the plaintiff may want a written apology. In a medical negligence or product liability case, the defendant may want confidentiality. In a business case or a divorce case, timing of the payments may have tax advantages to one side and be tax neutral to the other; one side may want temporary storage and the other side has adequate space. There are other items which may be important and that have financial consequences, but which could be beneficial to both sides. In the appropriate case, a structured settlement may be helpful to the plaintiff and encouraged by the insurance company. In a wrongful death case, I have had grieving parents accept a scholarship fund in honor of their child as a major component of the settlement. Each case is different, and the mediator must look for those items of importance to the parties that will make the settlement discussions unique. Also, the mediator must be creative in thinking up ideas that will provide satisfaction to the parties.
In a typical case, I do not raise the non-cash issues as points of discussion early in the process. I ask questions, listen to the answers, and keep track of possibilities for later discussion. When the cash negotiations begin to get difficult, then I introduce non-cash items as points of discussion. I have seen insurance companies offer more money when the plaintiff agrees to a structure, or when the plaintiff will agree to confidentiality. I have seen plaintiffs lower their demand in business cases if the deal is structured favorably for tax treatment. I have mediated employment cases where the wording of a letter of recommendation (involving professionals) was at least as important as the money.
Each case is unique, but there are usually numerous private sessions with the parties, as the mediator shuttles back and forth. When the parties get used to the mediator and his regular visits, things usually get less formal. The mediator is in control of the timing and must make important decisions about many things, including: when and how to deliver messages and raise non-cash issues; whether and when to break for lunch or for the day; whether to suspend the mediation for a cooling off period or for further discovery; and whether to bring the parties back together for an “all hands” session. During this process, the mediator needs to recognize that mediation is an ongoing discussion; it is rarely appropriate to obtain a “bottom line” from any party since it is likely to solidify positions and make eventual settlement less likely. Instead, the mediator must keep the conversation going, looking for openings with visual and verbal cues. If the mediator has paid attention to the many details that have been described above, the climate will be favorable for eventual settlement.
When parties have negotiated in good faith and have gotten close to their mutual goal of settlement, there is usually a creative way to bridge the gap, but the mediator must find it. In my experience, tenacity is usually what the parties desire from the mediator. Nothing is more frustrating to a party than to invest time, money, emotion and effort in a mediation only to see a mediator give up without exhausting the possibilities (and the parties). A mediation gone bad can actually generate ill will among the participants and can make settlement even less likely than before the mediation. A passive mediator is worse than no mediator at all.
H. The final session
If the mediation goes well, settlement will usually occur at some point during the first day. The mediator should bring the parties back to the room where the first session was held and state his understanding of the terms of settlement. If everyone agrees with the terms as stated by the mediator, he should make sure that there is a memorandum of agreement, signed by all persons necessary to bind the parties, before the session concludes. He can then congratulate the parties on their mutual success.
If settlement does not occur during the first day and further sessions are expected or possible, the mediator should have an all hands session to explain that the parties have gone as far as they can at that time. He can summarize all that has been accomplished. If appropriate, he can schedule the next session. If the parties are not yet ready to schedule another session, he can leave things as an open conversation and say that he will follow up with the parties. Unless he is told by one of the parties that his help is no longer desired, he should follow up with the lawyers as part of the “continuing conversation.” By doing so, the mediator can often eventually facilitate settlement even in the toughest cases.
Mahatma Gandhi said that “lawyers will, as a rule, advance quarrels rather than redress them.” He was clearly not speaking about effective lawyer-mediators. The mediator’s primary mission is problem solving – working to “assist people in reaching a voluntary resolution of a dispute or conflict.”13 In order to accomplish this, he must actively listen, question, research, plan, create, facilitate, encourage, supervise, and memorialize – all with patience and tenacity. No wonder that “mediator” is an action noun!
1. NH Superior Court Rule 170; LR 53.1
2. Kimberlee K. Kovach, Mediation Principles and Practice 26 (3rd Ed. 2004).
3. Not to be confused with “diagram of”.
4. American Heritage Dictionary of the English Language (New College Ed. 1970). (High School graduation present).
5. Model Standards of Conduct for Mediators, I. “These standards were developed and adopted by the American Arbitration Association, the American Bar Association Section of Dispute Resolution, and the Society of Professionals in Dispute Resolution in 1994.” James J. Alfini, “Mediator Ethics” 66, from Dispute Resolution Ethics, A Comprehensive Guide, edited by Phyllis Bernard and Bryant Garth for the American Bar Association Section of Dispute Resolution. These standards have been adopted, in large part, in NH Superior Court Rule 170.
6. American Heritage Dictionary of the English Language (New College Ed. 1970). (High School graduation present).
7. Model Standards of Conduct for Mediators, III.
8. USDC NH Guidelines for Mediation Program, 5(b).
9. Roger Fisher and William Ury, Getting to Yes, p.168-169 (2d. Ed. 1991).
10. NH Superior Court Rule 170(J)(5).
11. Roger Fisher and William Ury, Getting to Yes, Ch. 1 (2d ed. 1991)
12. Kimberly K. Kovach, Mediation Principles and Practice, Ch. 8 (3rd Ed. 2004).
13. Kimberlee K. Kovach, Mediation Principles and Practice, 26 (3rd Ed. 2004).
Attorney John B. Garvey, chair of the litigation department at Sulloway & Hollis, P.L.L.C., is an experienced mediator and teacher. He recently was named Professor of Law and Director of the Daniel Webster Scholar program at Franklin Pierce Law Center, where he is developing a rigorous, practical-skills approach to training and testing law students for admission to the Bar, in lieu of the traditional bar exam.