Reframing the Role of Mediator – Part 3: Mediator as Risk Assessor and Agent of Reality

Sheldon Stark, IAM Distinguished Fellow
shel@starkmediator.com

(This is the third and final segment of the article.  Part 1 discussed Party Expectations as Barrier and suggested that mediators should offer a productive reframing, while Part 2 focused on Mediators’ Many Hats in the process.)

We’ve all seen it: Advocates and parties fall in love with their claims and defenses and sweep all warts and problems under the carpet in the run up to mediation.  Positions harden.  They convince themselves their story is the only story.  They undervalue the risks and shortcomings.  They assure themselves their numbers are reasonable and the other side doesn’t get it.  A passionate belief in the righteousness of one’s cause is a great asset at trial.  It’s not a recipe for success at the mediation table, where it undermines flexibility and corrodes the joint problem-solver mindset.  In the following areas among others, mediators can help as Risk Assessors:

Dispositive Motions:  Based on their background, mediators bring value to the process with their ability to identify risk and ask participants experience-based questions to insure that a realistic assessment of the risks is at work.  When risks are reviewed openly and analytically, the parties are more likely to give them the respect they deserve.  For example, will the case reach a jury?  Who is deciding the dispositive motion and what is their track record?

Motions in limine:  If there’s a trial, what are the strongest pieces of evidence supporting the claims and defenses?  Is there a risk motions in limine will exclude some or all?  If excluded/admitted, what is the impact on valuation?

Witness assessment:  How do the parties come across?  How will they stand up on cross-examination?  Are there missing witnesses or documents?  How sympathetic is the claim?

BATNA/WATNA:  What is your best and worst alternative to a negotiated agreement?  What is the most likely alternative to a negotiated agreement (MLATNA)?  How does your BATNA/WATNA/MLATNA compare to the offer on the table?

Collateral consequences:  Have the parties considered collateral consequences?  How likely is this case to result in the public exposure of private or embarrassing facts?  Will media attention have an impact on product sales or the market?  Might a verdict impact claims of other potential parties similarly situated?  Will the dispute result in important non-parties being dragged in: customers, bankers, clients, patients, distributors, vendors, etc.?

Mediator as Agent of Reality.  An important role for the mediator is to be a messenger, carrying offers and counter-offers back and forth between rooms, encouraging movement, translating messages and rationales into language the other side will listen to, process and understand.  Sometimes, even when the parties reject joint sessions they have a message or two they truly want the other side to hear.  “You didn’t handle this right.”  “This shouldn’t happen to anyone else.”  “This was not personal; we followed our procedures.”  They may prefer that the mediator convey the message.  If the message is “I’m sorry,” experienced mediators push back.  A good apology is best delivered in person by the party.  Mediators should lay the groundwork by preparing one party to deliver it, the other party to receive it.

If the parties are interested in relationship repair, exploring possible business solutions or establishing new channels of communication for the future, the mediator can assist in working through whatever needs to be done for that to happen.  In a dispute over a commercial lease, for example, part of the tenant’s frustration was how its many complaints fell on deaf ears.  The landlord experienced frustration when the tenant engaged in self-help repairs, the cost of which was then deducted from the rent.  A new complaint process was developed through mediation that both sides have found addressed their respective concerns.

Mediator as Painter of the Courtroom Picture:  Another important role of mediators is exploring the expectations each party brings to the table about trial.  Outside the profession, most people have no clue what a real trial looks like.  Neither do many litigators.  For instance, in a recent year, less than 1% of all cases in my state went to trial.  Lawyers are no longer getting first-hand trial experience.  For most litigants, what they know about trials comes from television and the movies.  They have no sense of what a courtroom actually looks like, what’s necessary to prepare, how evidence is introduced, the limited time they will have to make their case, restrictions on what they can say to the jury, and what it’s like to be cross-examined by a skilled advocate.  Mediators can help the litigators in painting the courtroom picture, delivering a realistic appreciation for what can be expected.  Many litigants are surprised to learn that their day in court is not what they imagined.  Proving someone a liar is difficult and rare.  Understanding how a claim or defense will unfold in the courtroom can have a prophylactic impact on a participant’s desire to roll the dice.

Conclusion.  Mediators are accustomed to identifying and removing impediments to resolution.  Mediators build relationships and gain participant trust for ourselves and our process.  We dig down to interests and needs.  We translate each party’s message into words likely to be heard and understood in the other room.  We identify and explore risk.  We make suggestions about formulating proposals.  We are agents of reality.  We help parties assess value based upon risk.  We aid in the search for common ground and brainstorm options for resolution.  We assist in relationship repair when that is of value, and we open new channels of communication.

Every day mediators are faced with parties filled with suspicion of one another, a strong sense of victimhood, escalated emotions, misunderstandings, failures to communicate, unrealistic expectations, weak risk analysis, ignorance of the cost of non-agreement and more.  When parties reach out to hire a mediator for help in resolving their dispute, an additional obstacle may be present: skepticism, misperception, and distrust about the mediator’s role in the process.  We may be viewed as one more hurdle standing between them and a desired result.  Mediators must reframe this erroneous “job description” and replace a negative perception with a positive one.  By explaining mediators are there to provide information about risk and cost, and by gaining their confidence in our process and establishing the foundation for a WIN/WIN resolution, mediators assist them in deciding whether to settle and at what level.  That’s our job!

IAM Blog Editor-in-Chief Keith L. Seat may be contacted at kseat@keithseat.com