Lawyers and their clients in disputes turn to mediation when
negotiations fail. Mediators don't decide disputes. They help
parties reach negotiated settlements.
Traditionally, many think of the mediator's role as purely that
of facilitating the negotiation process.
High emotion, lack of trust and an unwillingness even to hint
at concern about in-court outcomes are often barriers that turn
settlement negotiations into posturing sessions, full of angry
interchanges, charges and counter-charges. The skilled mediator
knows how to defuse posturing and help the parties talk more civilly
about the key aspects of their dispute.
Even where emotions and the tensions of the adversarial process
don't disrupt the ability of the parties to communicate, direct
negotiations often flounder because neither side is willing to
disclose its true views about a fair settlement. Each fears that
the other will take advantage of honesty. By getting each side
to provide confidential information about its objectives and settlement
positions, the skilled mediator can often discover that parties
are far less polarized than their "public" positions make it appear.
Outcome Prediction Barriers
But in my practice these facilitative skills are often not enough
to overcome all the barriers to a negotiated settlement. Even
after I've been successful in getting behind polarized settlement
offers and demands to learn or make an educated guess about each
side's true settlement objectives, I discover in many cases that
the parties have fundamentally different views about the strengths
and weaknesses of each other's case.
Clients and counsel on both sides recognize that it will take
time and money to prove their case in court. They profess a keen
desire to reach a fair resolution. But often both sides are thinkng
that even though they are willing to settle - the other side should
In these circumstances, I have to go beyond what many see as
the appropriate role of the mediator, and wade right into the
middle of the parties' merit dispute. Since I have no power --
I can't decide who is right -- I have to proceed gingerly. I risk
losing my credibility as a neutral if I'm seen to take one side.
Still, unless I find a way of changing the evaluation of the case
made by one or both sides, I can't resolve a case where the critical
path to settlement is barred by substantial differences of views
on the merits.
Staging the Process
The secret to changing outcome prediction views without losing
credibility is to proceed in stages.
One essential ingredient is preparation. In any hard-fought case
where the parties fundamentally disagree about likely outcome,
much of my credibility comes from having structured the mediation
process to allow me to educate myself on the merits and on the
history of the parties' dispute before I ever meet the parties
in a formal mediation session. I do that though mediation submissions
and either separate confidential telephone discussions or separate
meetings with trial counsel and, sometimes, clients. That preparation
lets me demonstrate to the parties early on in the actual mediation
session that I understand their dispute -- and the legal and business
issues that divide them. It helps me enhance their willingness
to take my advice, both about the process of negotiation and,
later, if necessary, about each side's views on the merits.
Once I convene clients and counsel for the actual mediation,
joint sessions are almost always the appropriate starting point.
Counsel are asked to synthesize their views about what's going
to happen if the dispute can't be settled, and pushed to articulate
the strengths and weaknesses of each side's position. Often these
presentations provide the first opportunity for opposing clients
to hear a succinct synthetic statement of the other side's best
case on the merits. The point/counter-point presentations, combined
with probing questions from the mediator, highlight jugular issues
and often help each side view the pros and cons of their fight
They set the framework for focused and frank discussions between
mediator, client and counsel in separate, private meetings that
follow. Although it's sometimes possible to come up with an insightful
"interest-based" solution that bridges an outcome prediction barrier
and brings the parties quickly to closure, most mediations require
back and forth bargaining and shuttle diplomacy. Trying to bring
the parties' proposals for settlement closer together, the effective
mediator encourages "principled" bargaining, not merely over interests
but also over each side's evaluation of what will happen if it
can't settle. The mediator insists that counter-offers be accompanied
by reasoned justifications, rather than being just the next step
in a bazaar-like haggling process.
A "principled" offer/counter-offer process lets the mediator
engage in an incremental dialogue with each side, in which each
offers justifications for its next offer or demand. The mediator
is gate-keeper, passing on arguments that seem to express reasonable
judgments about how a particular issue will be decided and working
to create doubts about other arguments by playing devil's advocate:
"I can take that justification to the other side, but they're
going to respond by saying 'a' and 'b' and 'c'. How am I going
to answer them?"
Even where it's clear that the parties' initial views about likely
outcome are widely divergent, I can bring many negotiations to
a conclusion through a principled offer/counter-offer process
without ever explicitly disclosing my own evaluation of the strengths
and weaknesses of each side's case. It's not that I haven't evaluated
the case. Particularly on the second day of a two-day mediation
session, I've likely reached clear judgments about which side
makes the most sense, and why. But I'm often able to help move
the parties towards a resolution without having to surface those
Explicit Case Evaluation
But, in a substantial minority of the cases I see, skillful questioning
and focused devil's advocacy can't fully overcome a difficult
outcome prediction barrier. Faced with intractable differences
of view about who is going to win and what constitutes "fair settlement,"
I think the mediator's responsibility is firmly to step over the
threshold from facilitator to evaluator. If, but only if, the
parties agree (and have so stated in a pre-mediation agreement),
I'll tell them (with reasons) what I think a fair settlement is
and what I think will happen in court if they don't settle. Sometimes
that's best done on the spot, jointly or, more often, separately;
sometimes, it's best done in writing, followed by a further in-person
However my evaluation is done, I recognize -- and tell the parties
-- that I'll never know as much about the details of the case
as the trial lawyers. If I've demonstrated during the mediation
process an ability to help the parties cut to the quick in their
identification and analysis of issues, then the evaluation I offer
will be taken seriously. Particularly if I'm believed when I assert
that I don't talk out of two sides of my mouth -- telling each
side separately what a lousy case they have -- my advice will
be taken more seriously as my best effort to evaluate the merits,
not as my attempt to provide the advice most likely to get the
parties to a deal.
What's the bottom line? The most effective mediator is one who
adapts his or her role to help the parties overcome specific barriers
to reaching a negotiated settlement. Effective mediation in cases
where outcome prediction is a critical barrier requires the mediator
to go beyond facilitiation. The secret to success is understanding
and using a variety of tools along a "facilitation/evaluation"
continuum. The critical tasks are to get educated on the merits,
then provide staged input through managing substantive dialogue,
tough questioning, targeted devil's advocacy, and, as a last resort,
explicit evaluation and settlement recommendations.
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