Sheldon Stark IAM Scholar in Residence
Part 1: Setting the Table
What is 168,000,000?
168,000,000 is the number of search results on the web for the term “mediation”. While there is much to be said about mediation, when boiled down to its least common denominator, mediation is nothing more than an assisted negotiation.
Mediators – neutral, unbiased and objective – assist the parties in negotiating a settlement of their differences by improving communication; translating messages so they are better heard and received; exploring needs and interests; encouraging realistic assessments of risk; and removing impediments to resolution. Mediators assist in weighing the cost of continuing the conflict and refocus attention on the future. And, when the time arrives to exchange numbers, mediators can help the parties improve their proposals by pointing out the many ways unrealistic, over-the-top opening offers can poison the well, cause consternation and derail the path to resolution. Mediators assist the participants in developing more productive proposals likely to stimulate positive counter-proposals. This is called “negotiation coaching”. In this 3-part article, I will suggest how to “set the table” for a successful mediation process (Part I); choose the right moment to open the negotiation process (Part II); and provide counsel to advocates and parties to formulate constructive proposals (Part III).
The Pre-Mediation Process
The process of managing a positive negotiation begins long before the first numbers are exchanged. A proper foundation must be laid, starting the instant all parties agree to our service.
My process is to initiate a pre-mediation conference call with the following elements:
- Logistics: Make disclosures, learn negotiation history, encourage the advance exchange of information and documents, determine whether mediation is voluntary, identify participants and arrange scheduling, duration, and due dates.
- Process design: Fit the mediation process to the dispute. Are the parties agreeable to a mediator’s opening remarks? Do they prefer an all caucus/shuttle diplomacy model or are they open to joint sessions? Will they set aside traditional zealous advocacy in favor of a joint problem solver mindset? Can we begin with a facilitative approach, becoming more evaluative only after the process has unfolded and the parties approve?
- Dispute dynamics: Obtain a preview of the conflict and its peculiar dynamics.
I encourage the lawyers to take full advantage of the unique opportunity presented by mediation to speak directly to the decision-maker on the other side. Rather than default to an all-caucus, shuttle diplomacy model in every case, I suggest they consider the option of joint sessions and how joint sessions might be productive. In my experience, joint sessions work and work well. Rarely do I see the “nightmare” scenarios the advocates fear so much. If things start to go sideways, moving back to caucus is always available.
I remind participants that mediation is not a fact-finding process; it is not an adjudicatory process. Mediation doesn’t determine who is right and who is wrong. Nor does it establish who is telling the truth and who is not. I’m not a decision-maker and hence there is no need to persuade me. Rather, mediation is a dispute resolution process. The decision-maker is on the other side. When the parties are overzealous advocates, they antagonize rather than persuade. Accordingly, I ask them to commit to being joint problem solvers.
Everyone at the table has the same problem: mediator, advocates, and parties. How do we solve it? What does it mean to be a joint problem solver? Joint problem solvers don’t try to score every point; they make reasonable concessions. They use the language of diplomacy. They try to understand each other’s perspective whether they agree or not. Joint problem solvers listen with an open mind.
Mediation is also an opportunity to learn information critical to proving claims and defenses if trial is ultimately required. And, of course, if the dispute does not resolve, everyone is free to return to traditional zealous advocacy. I urge the lawyers to inform their clients of the changes in counsel’s role, to avoid the impression that counsel has lost faith or confidence in the representation.
I provide educational materials to assist the litigators and their clients in preparing for mediation. https://www.starkmediator.com/wp-content/uploads/sites/4/2013/10/2013_Article_Making_the_Most_of_Mediation.pdf
I offer suggestions for developing a strategic mediation plan to better achieve their goals. https://www.starkmediator.com/a-success-primer-for-mediation-achieving-client-goals-through-strategic-preparation/ 
If the parties are willing to participate in a joint session, I offer materials to assist them in putting their presentations together. https://www.starkmediator.com/wp-content/uploads/sites/4/2020/04/Stark-Mediator-Effective-Presentation-Directions.pdf
Helping parties learn to get the most out of the mediation process gains their trust, gives them hope, improves their preparation, ultimately achieving more of their goals and objectives. Our professionalism and process assistance can create an openness on their part to listen to our suggestions and follow our advice when the time comes.
Exchanging Information: Written Mediation Advocacy
I encourage the lawyers to exchange their mediation summaries and to do it a week in advance. The more each side is familiar with the theories, approach, evidence and arguments of the other, the better prepared they will be to respond to important points while sitting at the mediation table. Receiving the summaries in advance gives each side time to research and pull together their own information in response. On the other hand, if the information in the written submissions is confidential and not disclosed to the other side, the mediator is “hand-cuffed,” restricted in regard to which risk issues to address. In an employment dispute, for example, defense counsel may point out confidentially that plaintiff falsified his application for employment, committing resume fraud. Since mediation settles most disputes and trials occur in less than 1% of all cases, saving good information for trial makes little sense. Far better that plaintiff’s counsel be aware that her client’s credibility is compromised when evaluating the risk of non-resolution. Openly sharing the information gives the mediator a tool for exploring the risk of effective impeachment.
I provide the option to supplement shared submissions with a “mediator’s eyes only” letter, particularly where advocates are not ready to share every piece of sensitive information such as client needs and interests. If the parties have particular non-monetary goals and objectives for the mediation process, this is an opportunity to let the mediator know in advance. An apology or acknowledgment, for example, or a letter of introduction or neutral reference, a nunc pro tunc resignation, retention of a company car or computer, future business opportunities, reputation repair, etc.
I also recommend that they focus their written submission on persuading each other. The decision-maker on the other side should be their primary audience, not the mediator. See, https://www.starkmediator.com/articles-links/crafting-effective-mediation-summary-tips-written-mediation-advocacy/
Regrettably, some advocates believe their own client is the principal audience. This generally results in a summary filled with verbal assaults and invective which only serves to antagonize or alienate at the very moment their goal should be getting through to the decision-maker on the other side. Sometimes their zealous written advocacy pushes beyond what the evidence supports, and – while it may earn kudos from their client – undermines their credibility with opposing counsel. If they have the “goods,” they should highlight them with exhibits and attachments. If they don’t, exaggerating and making unsupported inferences is not helpful. All these problems have an impact on opening numbers because they drive emotions – both ways. They “rev up” their own clients and create unrealistic expectations that the lawyer then asks the mediator to help walk back. And, it typically serves to further alienate or escalate the other side.
Sometimes advocates close their written submissions with a settlement offer that is irritating at best, incendiary at worst. Numbers are always the loudest message, and an aggressive number in a mediation summary sends a powerful unintended message: This case is not going to settle because I have a totally unrealistic assessment of its value!
At times the number is orders of magnitude higher/lower than previously communicated. The message received: we’re wasting our time. One side may have agreed to participate in mediation because the last offer was within a reasonable range. When the mediation summary has a far different number, the result is bad. It leads to outrage. Emotions escalate. Parties threaten to walk. Precious time, energy and capital is spent calming the waters and encouraging parties to give the process another chance.
Don’t misunderstand me. If an advocate can blackboard significant numbers, their summary should surely disclose them. Their theory of damages and how the numbers were arrived at should be provided and explained: lost wages and benefits in an employment case; medical costs, replacement services, economic loss and mental pain and suffering in an injury case; or lost profits in a commercial transaction gone bad. Opposing parties need to know in advance how damages are projected in order to evaluate the situation and obtain sufficient authority to settle. But, an over-the-top dollar figure at the end of the summary to “show how serious this case is” or to “leave enough room to move”? Not helpful! See,https://www.starkmediator.com/wp-content/uploads/sites/4/2019/07/Why-You-Should-Avoid-Putting-A-Dollar-Demand-Offer-in-Your-Written-Mediation-Summary.pdf
Spending the first hours of the mediation process dealing with consternation caused by a provocatively written number is frustrating for the mediator and everyone else at the table. It is often followed by a whole litany of complaints and accumulated grievances about how the other side has handled every aspect of the litigation. “Shel, I need to put this number in context, so you understand why we’re so disappointed!” Provocative numbers undermine goodwill and derail our best efforts to reach an agreement – to say nothing of the added expense to parties forced to pay for the wasted hours in attorney and mediator time
 To view my pre-mediation conference call agenda, see https://www.starkmediator.com/wp-content/uploads/sites/4/2019/06/Agenda-for-PreMediation-Conference-Call.pdf
 Parties who prepare for mediation by developing a strategic offer/concession plan in advance generally do better than those who “plan” to bargain reactively. Reactive bargainers may not exercise their best judgment in negotiation when buffeted by the winds of emotion. Negotiators who bring an offer/concession strategy to the table must be flexible, however, prepared to make adjustments based on what they learn through the process.
 This prevents parties from avoiding discussion of a risk because they assert, there wasn’t time to investigate or they hadn’t anticipated an issue.
Part II:’ Choosing the Right Moment to Open the Negotiation Process’ will appear in the next issue.