Sheldon Stark, IAM Distinguished Fellow
(This is the second of three segments. Part 1 discussed Party Expectations as Barrier and suggested that mediators should offer a productive reframing, while Part 3 will focus on the key roles of Mediators as Risk Assessors and Agents of Reality.)
Mediators have many roles in the mediation process:
Mediator as Educator. Education is an essential element of the mediator’s job. First, we educate the parties and their counsel to achieve a better understanding of the process. Mediation is an opportunity to step back from the fray, climb up to the balcony, and look for a way to reach an amicable accord. If a party goal, mediation is an opportunity to repair relationships, and establish effective channels of communication. It is not just another stop on the litigation express. As educators, mediators help parties see how they can reduce costs and seek maximum mutual benefit. Mediation is the one place where parties can communicate directly with one another, take a step back and assess their best and worst alternatives to a negotiated agreement, determine if resolution might better meet their underlying needs and interests, and make judgments about whether the economic costs and potential collateral consequences are worth the risk.
Second, mediators educate about what lies ahead in discovery or trial if the dispute doesn’t settle. We assist each party in hearing and considering the other side’s story, although not accepting it as truth. That’s rarely going to happen. Each party has its own view about what transpired and they’re likely to stick to it. Mediators ask only that the alternative story be considered. We ask, “Is it plausible? What is the risk the court or fact finder will believe it?”
Even if the conflict doesn’t resolve, if participants listen carefully, they will learn the other side’s perspective, better appreciate and assess their own strengths and weaknesses, and discover what it will take to reach agreement. Information has value. Experienced mediators help parties find that value through education.
Mediator as Interpreter and Translator. Sometimes a failure to communicate is the cause of conflict, and the mediator’s role is to make certain the parties have heard and understood each other. Communication may be hampered by zealous advocacy, competitive personalities, provocative “fighting” words, or the adversarial process itself. In these cases, the mediator’s role is to interpret messages, translate words, or neutralize the inflammatory rhetoric so that important issues will be considered and assessed in their proper light. Accusations of lying, for example, generally aggravate the conflict. Reframing can lead to better understanding: “They have serious questions about credibility and here’s why….” The language of diplomacy, elevating the discussion a notch or two, reframing, and inviting participants “up to the balcony” to look down on the big picture are all tools in the mediator’s array of techniques.
Mediator as Information Exchanger. Good settlements generally require the exercise of good judgment by the parties. Most people are not ready to resolve their dispute unless and until they have all the information available to consider and process. A reasoned top or bottom line assessment of settlement value results from a careful analysis of all the factors refined and uncovered during the mediation process. The mediator’s job is to manage the transfer and exchange of as much information as possible. The exchange of information is particularly important should the parties be unready or unwilling to settle. There is great value in the mediation process if the parties come away knowing each other’s numbers, having a better understanding and appreciation of the risks, the facts, the costs and the other side’s perspective with which they will contend going forward. Understanding and considering the other side’s perspective is often an undervalued aspect of the mediation process.
Mediator as Guide to Needs and Interests. Most parties and their advocates are trained in positional or distributive bargaining. They rarely think about or identify the underlying needs and interests driving the dispute. Accordingly, another mediator job is to assist the parties in identifying their own needs and interests and trying to read those influencing the stance of their adversaries. When needs and interests are identified and examined, the parties may be better able to formulate proposals that are attractive and positive. For example, in a non-solicitation case, a former employee resigned to start his own business, inviting current clients to leave with him in violation of his employment contract. Plaintiff sued for injunctive relief and damages. The plaintiff’s CEO, whose business was highly successful and lucrative, did not actually care whether he recovered any money. The plaintiff cared about his office full of current employees observing whether defendant got away with disregarding the same non-solicitation agreement they had signed. The defendant, whose business venture had not succeeded, was interested in moving on with life and ending expensive legal representation. He was more than willing to acknowledge the validity of his contract to avoid further litigation. Without exploring underlying needs and interests, a resolution might not have been possible.
Mediator as Negotiation Coach. When the mediation process is boiled down to its least common denominator, it is nothing more than an assisted negotiation. The mediator, neutral, unbiased and objective, is there to assist the parties in better understanding each other, removing obstacles to understanding, and communicating in constructive ways. A major complaint expressed by litigators is the mediator who does little more than carrying messages and offers back and forth between the parties without any input or comment. This is understandable. A simple messenger adds little value to the process.
Yet, one of the most valuable roles a mediator can serve is a negotiation coach. Mediators are well equipped to assist the participants in formulating proposals, developing the rationale to explain them, and putting them forward in a constructive fashion. Regrettably – perhaps because mediation has become so popular – many fine lawyers seem to have forgotten how to negotiate. Mediator assistance, therefore, can be crucial to arriving at one side’s bottom line, the other side’s top. First, the mediator is the only participant at the table who has been in all rooms repeatedly throughout the day. An experienced mediator takes the “temperature” of each room. An experienced mediator hears and understands what is important to the participants. An experienced mediator recognizes what will and will not be welcome. As a result, the mediator can offer insight into how to frame an offer most persuasively.
Second, mediators are skilled and experienced negotiators who recognize the importance of putting together a verbal message to justify each demand and counter-offer. Mediators understand that dollar figures are such loud messages in and of themselves that wrapping a proposal in text provides a solid foundation for a more robust and businesslike exchange. Articulating the rationale for a proposal avoids an unproductive exchange about “my gut” versus “your gut.” Based on past experience and observation, mediators are in a position to provide suggestions about what may or may not work. An important aspect of negotiation coaching is to ask questions. How will the other side react to that number? What do you think they are expecting to hear from you in this round? What message will they read into this number?
Far too often attorneys want to open the negotiation with numbers that simply antagonize the other side, leading to retaliation, impasse or withdrawal from the process. Managing opening offers, therefore, is one of the most important challenges of negotiation coaching. “Why are you preparing a ridiculous offer?” mediators ask. “Because they need to understand that …!” You can fill in the rest. Whatever the litigator wants the other side to understand, an unrealistic proposal only precipitates an equally unrealistic counter. Lawyers are competitive. They act reciprocally. Indeed, unrealistic numbers cause the receiver to conclude the offeror is neither serious nor operating from good faith. Regardless of the message intended, that’s the message received.
In Part 3, the author describes the mediator’s role as an agent of reality and the many ways mediators identify and encourage risk assessment.
© 2019 Sheldon Stark
IAM Blog Editor-in-Chief Keith L. Seat may be contacted at email@example.com