March 23, 2016

A few modest suggestions for effective mediation

Posted in Negotiation by Gene Killian |

I got an e-mail the other day from a colleague who was planning to mediate a commercial insurance case. He sent me a list of mediators (a.k.a. “the usual suspects”) and asked me which ones I liked and which ones I didn’t like.  The question reminded me of Clarence Darrow’s famous 1936 article, “How to Pick a Jury.” I’ve always wondered whether Darrow wrote the article tongue- in-cheek, but it contained useful (?) tidbits like this one:

“If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; [he thinks that] unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.”

The truth is that broad generalizations don’t often work when picking juries (although sometimes they’re all we have to go on). Broad generalizations aren’t a great idea when picking mediators, either. A mediator who might be excellent in one type of case can be a complete disaster in another type of case; and I have to say from experience that the performance of most mediators can be uneven.

(Point of confession: I served as a mediator in the New Jersey Court system for many years, and I’ve participated in many mediations as an advocate. I’m generally not a huge fan of the typical mediation process, although I’ve gotten some tricky cases resolved in mediation. And I have several corporate clients who are convinced that mediation, as a general rule, is an enormous waste of time and money.)

So: Are there things you can do to make mediation more effective and more likely to lead to a negotiated solution? I’m glad you asked. Here are three random suggestions:

  1. Don’t think you always need a retired judge as mediator. Many people, especially litigators, tend to want to use (very expensive) retired state or federal court judges to mediate their case. I guess the theory is that a retired judge can engage in “evaluative” mediation, and explain to the other side, from experience on the bench, why your case is great and their case is awful.  And sometimes maybe the mediator will do just that – but it’s not very effective.   An effective mediator generally has to let both sides feel like they’ve been completely heard out, without “judging,” and needs to engage in the art of gentle persuasion - to poke and prod each side toward a range of acceptable solutions. With that in mind, think of the background of judges. When they were on the bench, they were overworked and overwhelmed, and compelled to make decisions to get things off their desk. Since patience is a critical virtue in mediators, that sort of background isn’t necessarily what you want. Which is not to say that, in certain circumstances, retired judges aren’t appropriate or desirable. If your case involves complicated legal issues, and you’re having a difficult time getting your client or the other side to understand the complexities, a retired judge might be very helpful. All I’m saying is, every mediation is different, every mediator is different, and you shouldn’t assume that a retired judge is always the way to go.  
  1. Get on the phone with the other side and (separately) with the mediator before the mediation. This doesn’t mean the initial organizational call.  It means private conversations after the initial organizational call, to prepare for negotiation.   This may be an especially difficult concept for litigators, because if all you have is a hammer, everything looks like a nail.  But mediation isn’t supposed to be an adversarial process; you’re supposed to be working together to resolve a problem.  The mediator isn’t a judge; he or she isn’t there to hear evidence and render a result in your case. Ex parte communications are perfectly appropriate, and, I think, essential to maximizing your chances of success.  When I was serving as a mediator, I found that lawyers and parties who did no “political” groundwork before engaging in the mediation session were far less likely to get to where they needed to be. A key question to ask the other side: What factual information do they think they need, that they don’t have in their possession, to have a meaningful negotiation with you? (Then, promptly get them the information if the request is reasonable and if you have it.) You should also talk with the mediator before the mediation session about any difficulties that you foresee in getting to a negotiated resolution, including any problems that you may be having with your client. Helping the mediator prepare is what people in the military call “leading up the chain of command.”  
  1. To me, the idea of “confidential mediation statements” is counterproductive, and, well, sort of dumb. Let the other side know where you stand before the mediation. Get them thinking about the case from your point of view. (If there’s some sort of confidential information that you want only the mediator to see, then provide that in a separate confidential e-mail or statement.)

- Gene Killian