Recently, I had the opportunity to meet with two separate groups of diverse lawyers. At both meetings, and without prompting, discussions of attorney attitude toward mediators and the mediator’s role arose. Because of the varied content of those discussions, I was prompted to write this article.
Mediation is designed to be a part of the process, where with the assistance of a neutral third-party, the parties can reach a final resolution of the dispute. The goal of mediation is to reach an end result, agreed upon by the parties, that is not made by the random person wearing the black robe in the front of a courtroom, or by strangers who are directed, as the jury, to determine a “winner”. Unlike the courtroom where adversaries are representing parties that appear on opposing sides of the caption, and the goal is to “win”; mediation is designed to “flip” the attitude of the parties. In other words, “winning” is no longer the single-minded goal; but not “losing” might be the resulting conclusion; or this aspect of my life has finally concluded and now i can move forward with a "clean slate".
In reality, mediation is more akin to a settlement conference, than anything else in the litigation playbook. The mediator best facilitates a resolution by directing the parties to communicate in a positive fashion to reach a conclusion that they each can live with and/or abide by.
Most mediations are the result of a “contractual obligation” entered into by the parties at a time when the parties shared a mutual benefit or purpose, or as a result of a Court Order, or statutory mandate. As such, attorneys will most likely be involved and have the potential to make, or break, the mediation. The only true obligation placed upon the parties thereby is to simply "show up". Some may go so far as to extend this basic obligation by emphasizing that the parties need to participate in “good-faith”.
The attitudes of the attorneys involved will cast a heavy shadow over the mediation and should be taken into consideration by the mediator as it depicts the litigation strategy that the parties will most likely utilize. While it is clear that mediation is a “confidential” part of the proceedings, without any real consequences if no resolution can be reached, it behooves all of the parties and their counsel to take mediation seriously. Counsel should be aware that the mediation session might be the first time, after the dispute arose, that the parties might be sitting across the table from each other. As such, constructive dialogue between the parties should be encouraged and not suppressed without good cause.
Attorneys should keep their aggressive and combative statements to a minimum, as there is no advantage gained by acting in such a manner; unless the goal is to “intimidate” and/or “bust” the mediation. If the goal is to “bust” the mediation, without giving the mediator a chance to do the job tasked, notify the mediator in advance so no unnecessary time will be wasted. An aggressive or combative attitude is counter-productive to the use of mediation as an effective tool to diminish the cost of litigation and to reach a resolution with which the client can be comfortable. Attorneys are advised to keep in mind that the mediator is not an “arbitrator” and has no “power” to issue rulings or to bind the parties, except perhaps through mutual agreement. No amount of aggressive behavior on the part of counsel is going to change the mediator’s role. As such, this unwarranted behavior is nothing more than wasted posturing which results in efforts that are ineffective, inefficient, counter-productive and may even violate the rule of candor to which all attorneys are expected to adhere.
The mediator expects that the parties have prepared for an effective mediation. This generally means that the attorney has spoken with their client and is aware of the client’s goals, attitudes and has become acquainted with the facts most likely to surface at the mediation. It also requires that the attorney has had a serious discussion where the party is put on notice as to the potential cost of future litigation and the chances of success and/or failure of the client’s expressed desires. The assessment should always involve a true discussion as to the “time and effort” that may need to be expended to reach the intended goals. There is nothing worse than a client being “blind-sided” by this assessment by the mediator and/or opposing counsel. An attorney should not depend on mediation as a means to “discover” documents that should have been exchanged by the parties prior to the mediation. Nor should attorneys, utilize mediation discussions as a testing ground to hone legal arguments, as the “law” is not the focus of mediation. After all, anything goes for a “self-directed” resolution of the dispute, so long as it is legal.
Attorneys should always keep in mind that clients usually have “unspoken” desires and or needs that fall outside of the pleadings, and must be assessed in evaluating the client’s so-called “bottom line”. A client’s desire to end litigation may be for “business reasons”; or the result of wanting to maintain one’s reputation; or to keep “ trade secrets” from being disclosed in “open court”; or for “tax purposes” that haven’t been fully vetted by the attorney; or fear of the unknown; or simply to appease someone else. Litigation is an emotional roller-coaster ride for the participants and the personal and emotional pressures need to be weighed heavily when assessing the “best” conclusion to the litigation.
Mediation can be approached in many ways, and no one approach is the correct one. Most successful mediators utilize the common approach of “haggling”. The “haggling” process, allows both parties to feel as if they gave up/got something in the exchange. Without the “haggling”, one party may resent the fact that they gave in too soon or didn’t ask for enough.
While many mediators believe the best starting point is equidistant between the two stated goals of the opposing sides (more commonly known as “splitting the baby in half”), this author has found that this approach has a tendency to lead to failed mediation. It tends to indicate to the participants that the mediator is not listening to the parties’ perspective on the disputed issues and over-plays the role as the neutral. Successful “haggling” may only come about by the mediator utilizing “caucus” sessions (private meetings with one side out of the hearing of the other). This “shuttle diplomacy” allows the parties to enlighten the mediator as to what the true goals are without giving the opposition a complete picture as to the bottom-line.
Keep in mind, is a path taken which is designed to short-cut the litigation process in such a way as to save the parties “time” and “money”.
If you are seeking a qualified “mediator” you can contact Glenn P. Milgraum, Esq. at “Morningstar Mediation” by e-mail at MorningstarMediation@aol.com or by calling 718-748-6625.
If you are seeking to hire independent counsel, to protect your interests in New York or New Jersey, feel free to contact Glenn P. Milgraum, Esq. by calling 973-812-8660 or by email at: Disputelaw@aol.com. You should also feel free to visit www.GlennMilgraum.com or link with us on www.linkedin.com/in/Disputelaw to review any upcoming posts.
*Nothing herein should be construed as legal advice. The content herein may be considered “attorney advertising”. You should always consult and/or retain a lawyer regarding any legal matter.