By: Margo Keller | Mediator, Arbitrator
I nod in my friendly way. Noncommittal.
Then he tells me he’s “Really sorry” but his client won’t give him any settlement authority because “the plaintiff’s demand made his client “hopping mad.” “Sorry,” he says again as I leave the room, “but she feels really strongly about this one.”
I move over to the Plaintiff’s conference room where the attractive, athletic-looking claimant nods helpfully as her attorney tells me that, because of the accident, she can no longer paraglide, and that her damages are “clearly in the six figures.” He does agree with defense counsel that he has not named a causation expert within the court deadline, but “he’s not worried about that.”
I nod again. For now anyway, I am noncommittal.
Although this example may seem unbelievable or at least humorous, mediators are presented with cases like this all the time. They seem impossible and yet they settle. Why? How? In my opinion, tough cases settle because, at least in part, a good mediator brings to the case a special set of personality traits and skills that help the parties achieve settlement.
A MEDIATOR’S PERSONALITY
- Objectivity. Unlike pure lawyers, mediators are not advocates, except for the process itself. Quite simply, a good mediator cannot have a “bent“: plaintiff or defense, employer or employee, etc. A mediator needs to help each side evaluate the strengths and weaknesses of the case, serving as a neutral but trusted “devils advocate”. It’s a fine line and often I find myself warning parties that the next time I come into the room they may think I am “not on their side”. Instead, I am doing what they are paying me to do: present risk in an objective fashion. For example, what happens to the plaintiff’s case if the judge excludes the expert witness not identified in time?
- Highly intuitive. A good mediator easily reads verbal and non-verbal cues and can often simply “sense” what approach will be most effective. I sometimes think this is a personality trait one is born with, however, these skills can be honed with experience and attention.
- Patience. Trust me on this one.
- Persistence. Probably one of the greatest mistakes parties or less experienced mediators make is giving up too easily. The good mediator sticks with you.
- Respects and Genuinely Likes People. I think this is critical. You know when someone has positive regard for you. A good mediator believes all kinds of people are worthy of time and empathy and frankly, enjoys everyone’s “story.”
- Trustworthy. It is fundamental to the mediator-party relationship that if requested, the mediator can be trusted with anything from a deep confidence to a random thought. Moreover, the mediator must be trusted to communicate the strength of a settlement offer or the complexity of a multi-faceted position.
- Sense of Humor. Many of the folks who attend a mediation have suffered a real loss or are seriously stressed from the litigation process. Although they may not admit it, many attorneys who attend the mediation are also worried or exhausted or stressed out about the case. (I often was.) A little well-placed humor can ease the situation. It can help the parties understand that yes, this process is much nicer than going to trial, and that after all, life will go on after this case ends.
A MEDIATOR’S SKILLS AND KNOWLEDGE
- A quick study. A mediator must be smart in that facile, “quick study” sort of way. The mediator must be able to grasp the facts of the case quickly and more importantly, be able to clearly identify the legal and people issues involved. In my opinion, the depth of a mediator’s knowledge of a particular area of the law is often overrated as a factor when selecting a mediator, however, it is obviously important that the mediator have a good general understanding of the particular law in the case at hand. It is also helpful to have a mediator who has tried cases to both a jury and the bench. This depth of trial experience can assist the parties in analyzing the strength of legal arguments, factual positions, and those emotional appeals everyone loves to rely on.
- Balanced orchestration of the mediation process. This skill comes with experience, intuition, and training. A good mediator knows when to be reflective, when to test a party’s sense of reality or the risks in litigation, and knows when to discourage explosive demands or moves. This is critical: a good mediator knows that settlement expectations are not lowered quickly, and that the process takes some time.
- Good verbal and listening skills. A good mediator can do both: listen and talk. I wouldn’t be able to settle my fictionalized “hurt paraglider” case without first learning about the plaintiff’s magazine contract for a photo spread, and I would definitely need to listen to the way in which the plaintiff communicates about the accident and her needs or losses in order to deliver those impressions to the defense. Occasionally, I have passed on a fact that one or the other attorneys had simply forgotten since the case was filed, which fact was critical in properly evaluating the risks in the case.
- Creative Problem Solver. This is my favorite skill. A good mediator has initiative and the confidence to use it. A good mediator can think “outside the box.” I love the fact that solutions not allowed in a court process can be successfully implemented in a mediated settlement. A good mediator asks the parties about ways to reduce taxes, structure settlements, meet non-monetary needs, narrow issues and agree on a dispute resolution process for future disputes. Just to name a few ….
- In sum, a good mediator does far more than walk back and forth between rooms and deliver “numbers.” A good mediator creates a sufficiently safe but realistic environment to help you evaluate the risk of trial against a proposed settlement offer. Finally, a good mediator allows the attorneys and clients to leave the mediation with their self-respect intact.
Hey, if it was easy, anybody could do it!