What Makes a Good Mediator?

By: Margo Keller | Mediator, Arbitrator

keller“You mediators have the life,” the defense attorney says to me as he leans back into his chair for our first caucus, “No stress, and let’s face it, it’s just not that hard to settle a case.”

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!

 

The Mediator and the Advocate: Tips to ensure a winning team

By: David M. “Mac” Shelton | Mediator, Arbitrator

sheltonMediators rarely “do magic” single-handedly behind closed doors. Teamwork is the key to mediation success. The team is the advocate and the mediator. As the mediator, I can help you, the advocate, only if you help me. Give me leverage for the negotiations, since I can’t generate it out of thin air.

The Roles of the Teammates

What settles cases? I see a common thread after two decades of mediating many different types of civil cases: meeting the subjective expectations of each party. My main challenge is to firmly, gently, but steadily alter the expectations of each party. This process begins quite early in the mediation hearing.

How can you help me? Before the mediation hearing, “soften up” the resolve of the other side with a concise, surgically drafted pre-hearing letter. I want to be greeting your opposing party in his or her caucus room anticipating that he/she has now become more sober/realistic on the eve of mediation than in the months leading up to it. During the hearing, your letter’s compelling “selling points” (positives about your case and negatives about theirs) provide points for me to use with the other side. I can only be as effective as the arguments you hand me.

Tips for Writing the Mediator’s Pre-Hearing Letter

The letter serves three distinct purposes. First, its writing should crystallize in your mind the main selling points. Second, the other side will be more aware of your position after reading it; if well-written, the letter will alter the opposing party’s expectations from the outset. Third, the letter provides a basis for my own talking points to alter those expectations even more.

Address Your Letter to Me but Don’t Write It for My Eyes

The reader you’re trying to influence is the opposing party (and counsel), not me. Picture yourself as the wise old uncle/aunt dispensing needed advice. Put yourself in the opposing party’s shoes and imagine the messages he/she needs to receive and how they’re best packaged. Obviously, avoid being dismissive, condescending, patronizing, or inflammatory. Be as objective and detached as possible. A “confidential” letter to me is almost always a mistake, in my view, since it’s a missed opportunity to influence the opposing party. In a separate letter put confidential comments for me only.

Send Your Letter Early

The first reaction of parties and counsel to your letter is normally defensive. Don’t expect to hear, “I surrender, you’re absolutely right”, in response. But given more time to consider your points, the opposing party will likely become more receptive to them and will begin to consider more seriously the risks of trying the case. WAMS instructs you to send me your letter at least several days before the hearing, but I recommend sending it to opposing counsel at least 10 to 14 days before the hearing, whenever possible. I don’t need your letter that early, but the other side does.

It is absolutely necessary for corporations, insurance companies, and government agencies to have your letter early because their decision-making is just too complex, time-consuming, and multi-leveled to expect a reasoned response in just a few days, let alone overnight. You’d be surprised how often an adjuster gets a thick initial demand brochure for the first time only a day or two before mediation, which leaves no opportunity to get additional settlement authority. Individual parties, notably plaintiffs in tort and employment cases, also need the letter early, especially given the high expectations that their overly optimistic counsel may have created. He/she requires a few days for the “bad news” to sink in. It is vital for my work that individual parties get serious before  mediation, not just at  mediation.

Know, too, that in the other caucus room quite often there is a person associated with the opposing side who is actually fighting for what you want. In effect, you have an undisclosed third member of the team working for you. The best example is the insurance adjuster or HR manager who is eager to close a claim file by getting authority for an amount the plaintiff is thought likely to accept. But that third teammate’s effort will be frustrated by the failure of the plaintiff’s lawyer to get updated or necessary documentation and provide it well before  the mediation.

Another possible third teammate is the subrogation or lien holder. A reduction of the subrogated claim is often critical for settlement, but the lien holder must be educated in advance  if you expect significant action on mediation day. The lien holder can help in other ways, too. I’ve seen how the L&I rep’s insightful comments in both the defense and plaintiff’s caucus rooms significantly altered a party’s position and got everyone closer to settlement. That person can only be maximally effective if he/she is fully briefed about your case in advance of the mediation.

Build Your Letter with Bullet Points

Overly detailed and long narrative letters are seldom helpful. A simple two page memo listing bullet points was one of the most effective submissions I’ve ever received. The memo didn’t even have complete sentences. But it was easy to read, listed all selling points, and included references to attachments (copies of key portions of depositions, expert reports, etc.) which were yellow-highlighted for efficient reading.

Employ the following exercise before writing your letter: picture yourself with a colleague giving you just three minutes to summarize your case. You must be succinct, but comprehensive and compelling. After listing all of the points out loud, write them down – and only then – start writing the letter with the list as your outline.

The Bottom Line

If you’ve done good pretrial work, you’ve performed 75% of your role in generating the leverage I/you need at mediation. But if you’ve neglected discovery or other aspects of your case, your team will be very limited in what it can accomplish for you at mediation. The other 25% of your role comes in preparation for the mediation itself, especially by crafting a good pre-hearing letter. Consider every possible member of your team when drafting your letter and give each teammate the information he/she needs early  enough to help you settle your case.