Sheldon Stark, IAM Distinguished Fellow
(In this 3-part article, the first part below suggests that mediators should address party expectations directly and offer a productive and trustworthy reframing. Part 2 discusses Mediators’ Many Hats in the mediation process, and Part 3 wraps up with Mediators as Risk Assessors and Agents of Reality.)
Expectations are resentments under construction.
“I know what your job is!” Misguided, hostile or uninformed participant expectations about mediation and the role of the mediator can be significant barriers to resolution. To assist participants in getting the most out of the process as well as a satisfactory experience, it is crucial that mediators acknowledge and address their expectations. An essential element of my practice is scheduling an introductory ex parte meeting with each party and their counsel the morning of mediation. In addition to “getting acquainted,” I routinely explore their experience with mediation, their understanding of the process, and what they expect from me.
Most participants reply, “Your job is to help us find a way to resolve our differences and settle the case.” Not bad. Occasionally, however, a party will say, “I know what your job is! Your job is to convince me to take (or pay) less (or more) than my case is worth!” Uh oh! These parties distrust the mediator or the process and fail to appreciate the unique learning opportunity mediation provides. They filter anything said by the mediator or the other side through a prism of skepticism, disbelief, and hostility. I’ve heard it from plaintiffs and defendants alike. I’ve heard it from “newbies” and from long-time claims managers. Hostile expectations present significant obstacles to resolution and should be reframed if progress is to be made.
Resolution requires a level of trust. Many parties arrive at mediation distrusting one another and resist efforts to build or re-establish any. Trust in the mediator and the process therefore becomes critical to success. Skepticism about the mediator’s role at the mediation table is unhelpful and corrosive. Skeptics don’t listen. They don’t learn. They push back. They deflect. They undervalue reality testing and risk assessment questions. Unaddressed, a perception that mediators are working against their best interests prevents resolution. Unaddressed, a sense that mediators care only about forcing resolution on unsatisfactory terms undermines what we seek to accomplish.
But do the skeptics have it right? Is the mediator’s job to guide parties to a resolution somewhere in between no matter what? Churchill famously said the best settlements are those from which both sides walk away equally unhappy. Is that what mediators are after? It is certainly true that cases almost always settle somewhere between the opening offer and counter-offer. If this is the mediator’s “job,” it is not irrational for parties to brush off the toughest questions, minimize reality testing techniques, and scoff at mediators’ efforts to establish the potential costs and collateral consequences of non-agreement. Middle ground is often the end result of what mediators do. I suggest, however, that the proper frame for understanding the mediator’s role is very different.
Let’s start with how we define the role of mediator. Are mediators satisfied with “helping the parties find a way to resolve their differences”? Perhaps. To me, helping parties find a way to resolve their differences is the net result of what mediators do, not the role mediators play in the process. The truth is mediators play many roles. To me, the list of roles does not include persuading plaintiff to take less than desired or defendant to pay more than the claim is worth. Let me suggest an alternative framing of the role I learned recently (thanks to IAM’s Bill Marsh) and now embrace enthusiastically.
“No,” I say to the skeptics, “That’s not how I see my job. I see my job as helping you make the best decision possible about resolution of your dispute. This is your case. Your life. Your business. Mediation is entirely voluntary. You decide. No one can exercise good judgment and make a good decision without all the information available. My job is to bring you that information including, among other things, the story the other side intends to present, the perspective they bring to the table, the strengths and weaknesses of the claims and defenses, the magnitude of the risks presented, the legal landscape, and the costs, both economic and non-economic, if the dispute does not settle today. Whether you settle and on what terms is totally up to you. Once you have all the information, with input and advice from your lawyer, I’m confident you will make the best decision possible.” That’s how I frame the role of mediators. That is the proper way to view the mediator’s role in the process. That transforms the skeptic from resister to joint problem solver.
I recently mediated a suit between family members over a lakefront cottage which had been in the family for many, many years. Both lawyers agreed partition was impracticable and that the court would order the property sold. Mediation presented an opportunity to retain the cottage in the family if one faction purchased the half interest of the other. There were hard feelings. No trust. Anger and resentment. “Is your goal to get one of us to buy at the lowest possible price?” one of the cousins asked, her face drawn with worry and consternation. “Not at all,” I replied. She wasn’t convinced. Of course I would deny what she thought obvious. She did not believe me. When I gave my frame on the mediator’s role, however, I could almost see a light bulb turning on over her head. She visibly relaxed. She smiled. She engaged. An agreement was reached in the second round. Reframing the role of mediator as a neutral, objective third party motivated to help parties exercise their best judgment is powerful.
In Part 2, the author describes the many additional hats mediators wear at the mediation table.
© 2019 Sheldon Stark
IAM Blog Editor-in-Chief Keith L. Seat may be contacted at firstname.lastname@example.org