Jonathan B. Marks

As published in "The American Lawyer" 1996

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 give in.

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 more realistically.

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 judgments.

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 mediation session.

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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