Mediator – Ally, Enemy, or Neutral?

A look at the pet peeves of experienced counsel and mediators can help you avoid some common mistakes

Last autumn, I introduced a panel of speakers at the Southern California Mediation Association’s 23rd Annual Conference for their presentation entitled “Attorneys’ Pet Peeves about Mediation.” The panel was comprised of five individuals: a highly esteemed former litigator and retired judge, now full-time Mediator/Arbitrator; a very successful former litigator and now full time mediator; two highly successful plaintiffs’ attorneys and an equally impressive insurance defense attorney. They all possessed courtroom chops, transactional expertise and keen negotiating prowess. What became clear at about the second “pet peeve” is that each mediator and each attorney has their own unique approach to mediation and that mediation is clearly not a “one size fits all” process.

One panelist approached his chosen mediator with what he described as a “co-conspirator mentality,” all the while never surrendering any control during the process. Another stated that he firmly believes the process involves “negotiating against the mediator,” not with the opposing party.

One panelist never wants the client exposed to the “other room” while the other resents not being allowed access to the opponents. One panelist prefers to approach the mediation “briefless,” while another is offended when briefs are not exchanged in advance of the hearing. One panelist felt strongly that the mediator can never be trusted with confidential material, while another felt equally strongly that confidences should be shared and would be kept.

Several of the panel participants felt strongly that if an agreement was reached, the key deal points should be reduced to a writing enforceable in court, while another panelist disagreed and wanted a handshake to suffice rather than spending an additional hour or more hammering out the specific deal points at the end of a long and tiring day of negotiations.

The lesson to be learned is that the tactics useful in one room will not necessarily be successful in another. This requires footwork akin to that seen on “Dancing With the Stars.” Having litigated cases for 20 years and transitioned to a full-time dispute resolution professional in both mediation and arbitration, I have found it is equally true that each mediator brings a different skill set to the table, and while that skill set may work for one type of case or litigant, it may not work for another.

Whereas one matter (or one room within a matter) may require an “evaluative approach,” another may benefit from a “facilitative approach.” Although many cases may seem to only involve the distributive bargaining process and negotiating a “fair” settlement, it may be that, in order to achieve a resolution, an apology is necessary, thereby giving the hearing a “transformative” aspect.

Approaches which seem to be working at the outset of the mediation hearing may need to be completely overhauled as the day progresses. How does an attorney navigate this minefield of possibilities while achieving the best result for his or her client? I propose a reading of the following “Mediator’s Pet Peeves” for guidance!

Failure to communicate

Mediators are often left in the dark to try to intuit and “guesstimate” what the parties, attorneys and insurance professionals want to accomplish in your hearing. Further, within each room, and on each side of the dispute, there may be different goals, styles and motives.

There may be client control issues or a history with the client that needs to be communicated. You may need your mediator to help explain things to your client or you may need your mediator to let you do the explaining. You have already spent countless hours working on the case; you know your client and the issues you face the best. Your mediator will greatly appreciate being taken aside and given the “heads-up” on issues she or he may have no way of determining, some of which may have nothing to do with the case at hand. (For example, there may be personal issues which may affect a client’s decisions regarding settlement vs. proceeding forward in the litigation process.) Feel free to communicate those issues confidentially either before or during the Mediation Hearing to your mediator. It will only serve to help your mediator achieve resolution of your matter. There is simply no downside.

Failure of timing

Has the hearing been set too soon and is it being used as a “testing ground” to determine what further discovery needs to be accomplished before a second session of mediation can result in a well-reasoned, well-negotiated settlement? Are there pending motions that need to be heard before mediation, or is the mediation timing appropriate with a motion scheduled and on calendar, but not yet heard? Good mediators are trained to be “closers!” Let your mediator know what your goals are. He or she can often provide great assistance with discovery and evidentiary issues if given the information necessary to achieve those goals, then a second session can be scheduled at an appropriate interval. Good mediation techniques can assist the parties in gathering and exchanging whatever information is important to them and the exchange of that information often removes barriers to settlement.

Failure to prepare

It goes without saying that showing up for your mediation hearing “trial ready” will maximize your settlement options. This includes making sure that you have deposed or obtained statements from all favorable (and sometimes unfavorable) witnesses and that you have completed all discovery necessary to fully evaluate your case. This also means ensuring that you have fully ascertained and documented wherever possible your client’s damages and that you have considered all of the potential defenses to liability and your client’s items of damages. This includes not only your client’s medical specials, but any loss of earnings, alleged diminution in value of property damage, life-care plans, actuarial opinions, and expert opinions regarding the potential costs and details of any further medical expenses or other forms of care needed. Bring all of your documents to the hearing. Don’t pare down your file and bring the “Jenny Craig” version! Whenever possible and appropriate, documents and information should be exchanged with your opponent prior to the hearing. This allows the defense and insurance professionals to run the information up the flagpole, so to speak, and avoids the often heard complaint that new information has just been sprung and, “Nothing can be accomplished today”¦”

Disrespecting the mediator or your opponent

Mediation can be frustrating. Tempers can flair, patience lost, voices can be raised, tears may flow”¦mediation can be messy. All of this is fine . . . it is expected, and your mediator is trained to deal with these occurrences. That said, it is one thing to express your frustration in a professional, respectful manner, and quite another to engage in unprofessional behavior. Name calling, eye rolling and character insults serve no purpose and may do irreparable damage to your position or at the very least, waste valuable time and resources, which must then be spent trying to get the process back on track.

Although as noted above, being “trial ready” is essential, it is not necessary to try your case at the mediation. Mediation presents a unique opportunity within the litigation process for candid, confidential discussions about what might or might not happen if the case proceeds to trial. Keep an open mind. Listen to the points being addressed by your opponent and the mediator. Draw upon your stores of patience, and most importantly, keep your sense of humor. Inflexibility and arrogance are not useful traits to bring to mediation and there is a vast difference between healthy vs. unhealthy distrust for your opponent and your mediator.

Dressing inappropriately

There are only a handful of attorneys who have the “presence” to pull off dressing in a casual manner for a mediation hearing. For most, appropriate business attire does indeed buy a measure of respect. First impressions are important. You are judged by your opponent not only on the content of your arguments but the package in which they are presented. I recall a hearing where the injured party’s young attorney appeared in jeans (and was also chewing gum). He had just taken over the case and had not yet met the defense team. He wanted to be put face-to-face with his opponents – a 30-year insurance defense trial attorney and an experienced insurance professional. He wanted to explain why he was going to beat them at trial and why they should recommend policy limits to avoid such an outcome. His presentation did not go well. He had a good client and a good case, but he was not taken seriously, simply because he did not look the part (although he did follow my suggestion to spit out the gum).

It is equally important that your clients appear for mediation well dressed, well groomed and be prepared to possibly meet informally with the defense folks. Often this is the first time that the insurance professional or the actual defense trial attorney will have an opportunity to meet your client and evaluate his or her potential viability as a witness. This can tip the scales in favor of a good settlement if you have a properly prepared client who presents well.

Don’t be late or forget your client

Showing up late to a mediation, really late, without an adequate reason, is a surefire way to get things started on the wrong foot. Although your mediator can get things started with the other side, there is only so much that can be accomplished without your presence. If there is something unavoidable, provide the mediator with your cell phone number so that communications can get started.

If you fail to adequately estimate the amount of time that you need for your hearing, this can result in the necessity for a second session and increase your costs. If you are uncertain how much time you need, discuss the issue with your mediator during the scheduling process. That way, he or she can schedule your hearing in a way that allows the flexibility to continue on without having to adjourn and reconvene, wasting precious time and resources.

Not bringing your client without first clearing it with your opponent and your mediator is another surefire way to get things started on a chilly note.

Conclusion

Optimal results can be achieved when you recognize that your mediator is a neutral party and yet treat your mediator as an ally and not an enemy. If you cannot trust your mediator, the process will be fraught with difficulties. The appropriate mediator’s mantra is to “Do No Harm” to your case and as such, he or she will maintain strict confidentiality as requested. A well trained mediator has the flexibility to use whatever style, strategies and skills that are dictated by the parties’ needs as they evolve throughout the hearing.

Wendy W. Kramer is a full-time, independent mediator and arbitrator in Santa Monica. She specializes in personal injury, business disputes, professional malpractice and complex litigation. Ms. Kramer has mediated over 1000 matters and is known for her ability to deal with difficult personalities and complex legal issues. She is the President-Elect of the Southern California Mediation Association. More detailed information can be found on her Web site: www.kramermediate.com.

September 1, 2012/by Wendy Kramer

Lessons Learned – The Right to be Evaluative Must be Earned

Writer's Corner

As beginning mediators, we’re taught that facilitative mediation is classic mediation. If you’re like me, however, you’ve discovered somewhere along your mediation career path, that an evaluative approach can greatly increase your settlement rate. The more cases you mediate, the more your subject matter expertise grows, giving you the right to be evaluative, right? You’ve “seen it all before;” you speak with experience and confidence; you know what a judge or jury will decide. Your settlement advice is invaluable. After all, you’re the expert. Your mediations begin to follow a tried and true format. Read the briefs, make your decision, and proceed with mediation”¦

Wednesday morning, Santa Monica Court, a rear end, minor impact auto case. This one’s a textbook fact pattern seen in hundreds of PI cases. MIST: minimum impact soft tissue. No broken bones, no mangled body parts, just sprains and strains with no demonstrable manifestation. Soft tissue injuries which would completely resolve, leaving the plaintiff good as new. Defendant wasn’t denying liability; he couldn’t. He’d rear ended plaintiff in an intersection where plaintiff was waiting for the green. It was a five mile per hour “little tap”, resulting in a modest $1,200 auto repair bill. What the defendant was disputing was the “necessity and reasonableness of plaintiff’s treatment.” Plaintiff’s chiropractic bills (specials) amounted to about $5,000 and, although multipliers went out the window decades ago, plaintiff was demanding $15,000. Defendant was represented by his insurance company’s in-house council. Their offer of $2,000 was playbook perfect: $1,000 for chiropractic and another $1,000 for pain and suffering.

I’d barely finished reading the mediation briefs when a number jumped into my head. $5,000!! My experienced opinion said plaintiff had over treated. While he definitely deserved more than the $2,000 defendant was offering, I clearly saw the settlement as $2,500 to the good doctor and another $2,500 for the plaintiff, his attorney and court costs. The magic number was $5,000!

I met the plaintiff and his attorney in caucus. I talked about confidentiality, told them that I wasn’t the judge and proceeded to evaluate the strengths and weaknesses of the case. This was a piece of cake – I can do PI cases in my sleep. Plaintiff’s counsel admonished me that, as mediator, my “job” was to get $15,000 from the insurance company, no negotiation. “Put yourself in the defendant’s shoes,” I replied. “Consider that your client has over treated.” Plaintiff’s attorney informed me he did not, and would not, put himself in Defendant’s shoes.

I had not gotten off to a good start. My next move would only make things worse. “Juries in this venue are particularly conservative,” I said. “In my experience, they wouldn’t be sympathetic to a healthy young man receiving four months of massages and hot and cold packs.” I went on to say that people hate being dragged to jury service, and that a jury may be angry at both sides for not working this dispute out themselves. “The jury,” I concluded, “could even, conceivably, award nothing.” Plaintiff’s attorney grabbed his client’s arm, dragged him to the door and screamed, “You have no basis for those assertions; this mediation is over.” He then headed into the courtroom to set a date for trial.

At that point, my past experience and extensive subject matter expertise meant nothing. My immediate jump to an evaluative stance caused me to miss an important underlying fact, namely a complex attorney-client dynamic. (In this case, the two were long time family friends and Plaintiff expected his attorney to act like a shark.) What I should have done first, was to explore that attorney-client relationship. Second, based on those findings, I should have given this combative attorney ample time to posture in front of his client. And third, in a private caucus with the attorney, I should have asked him to give me a chance to tell his clients the true value of their case.

In playing the role of “agent of reality,” the mediator allows the attorney to remain in a true advocacy position thus ensuring the mediator has earned the right to apply his subject matter expertise to set the case back on track towards settlement.

By Scott Berman, SCMA Director www.scmediation.org

June 20, 2011/by Scott Berman

Civil Harassment Mediation: A Settlement-Friendly Environment

Writer's Corner

Abstract: Civil harassment mediation, from an outsider’s perspective, seems to be a daunting environment in which to achieve a settlement. Parties have an emotional dispute, are not likely to cooperate with each other, and mediation time is limited. Nevertheless, settlements are achieved by applying well known concepts from basic mediator training.

Proving the proverbial “you can’t judge a book by its cover” axiom true, my mediations in the Los Angeles Superior Court (LASC) civil harassment program during the last several months have almost universally resulted in settlement agreements. No one is more surprised than I am by this revelation, as I approached this assignment cautiously hoping that my developed skills might work an occasional “win-win” outcome that we all seek as mediators. Parties to these disputes are highly charged with emotion, have a strong desire not to cooperate with each other, and mediators generally have less than one hour to try to resolve the dispute before the court hearing. With hindsight, and peering through the lens of our mediator training, comes recognition that the posture of the cases and the situations in which the litigants find themselves (by the time they get to court) make this a very settlement-friendly environment.

Why settlement-friendly? Let’s take a close look at the typical situation. Under current LASC program protocol, litigants appear at the courthouse to argue the merits of their case as to whether an injunction should be granted to keep respondent away from the petitioner for a period of up to three years. Many of the petitioners have been previously granted (without a hearing) a 15-22 day temporary restraining order (TRO) vs. the respondent(s) that is due to expire shortly. Usually in this program, the litigants appear pro per and are naturally very apprehensive about what might transpire during the upcoming hearing. The court may assign a specific case to the mediators, or alternatively, mediators may be allowed to solicit volunteers for mediation from the litigants waiting for the courtroom to start the day’s calendar. If the parties do not settle at mediation, they proceed almost immediately to their court hearing on the matter. The mediations in these matters are generally very short; 30 minutes to an hour may be all the time you have to mediate before the court calls the case.

Settlement-friendly: Alignment of Interests

One of the most important skills mediators develop is the ability to get “under the hood” of a litigant’s position to discern the interests. Our training tells us that once you do that, there may be interests in common between the parties for which we can ultimately derive a different position (which is then reflected in the settlement agreement).

Civil harassment mediators find this often “gift wrapped” for them. Not surprisingly, petitioner’s main interest at the courthouse is to have nothing to do with the respondent. However, the revelation is that in almost all cases, the respondent wants nothing to do with the petitioner. Without evaluating the veracity of the petitioner’s claims, (which may suggest that the respondent is fixated on the petitioner), by the time they get to the courthouse the respondent wants to be done with it. Maybe whatever they wanted previously from petitioner has not been worth the trouble created by the TRO or the current court hearing. Or maybe petitioner has overstated respondent’s actions. In any event, during mediation, respondents often state that their interest is to be left alone and they do not want further interaction with the petitioner. This aligns petitioner’s and respondent’s interests.

Settlement-friendly: Unattractive BATNAs

Another important skill mediators develop is the ability to help the litigants evaluate their Best Alternative to a Negotiated Agreement (BATNA). Those of us who mediate litigated cases routinely incorporate this “evaluative” approach into the vast majority, if not all, of our mediations. Civil harassment cases, housed under the statutory authority of CCP §527.6, lend themselves to this approach. Both petitioners and respondents invariably find that given their common interests of keeping away from each other, their respective BATNAs are not that attractive.

Petitioner’s BATNA is often very unattractive. CCP §527.6 requires, amongst other things, that the petitioner prove by “clear and convincing” evidence that respondent has engaged in a course of conduct over a period of time that would justify turning the TRO into an injunction of up to 3 years. Mediators with legal backgrounds, or those who have mediated litigated cases, know that “clear and convincing” is a standard that is much stricter than the general “preponderance of the evidence” standard required of most other civil cases. Additionally, petitioners in mediation often have difficulty asserting a series of acts that might constitute a course of conduct; instead, they are often relying on one egregious act or a series of ill defined actions within an unclear time framework that may not satisfy their burden under the statute to establish evidence that is “clear and convincing.” This means that a mediated agreement is, in many cases, the only real option petitioners have to come away that day with a document that will keep the respondent away from them.

Respondent’s BATNA presents troublesome issues as well. If they allow the case to go to hearing and lose, then they will have court findings against them that put them at fault. A settlement agreement is often more attractive, because they can reduce the risk of a court mandate regulating their behavior and, at the same time, serve what they state are their interests now – staying away from the petitioner and having the petitioner stay away from them. Note that even if they were to prevail in a court hearing, the ruling would not serve their interest in keeping the petitioner away from them.

Settlement-friendly: Impasse Avoidable

Mediators can avoid impasse in these mediations by establishing interests very quickly. We use a caucus-only format throughout the mediation, even in the party initial statements, because of the nature of the allegations in the civil harassment case. That provides the opportunity to use our reframing and reflecting skills extensively during the party initial statements to get to the interests of the parties. This invariably results in mutuality around the concept of staying away from each other. Agenda setting for discussion mostly includes the various forms in which the “no contact” with each other will manifest itself, e.g. personal contact, telephone, email, etc., and what happens should they come across each other in a public setting. Thus, in following this format, many of the reasons that often cause impasse are eliminated. Civil harassment mediators recognize that if impasse occurs it most likely marks the end of the mediation; the reality is that the court will want the case called in shortly if it doesn’t appear likely to settle.

Settlement-friendly: Settlement Agreement Practically Writes Itself

Mediators have the training and wherewithal to help the parties construct their agreement. The parties have already agreed to no contact in various forms as we progress through the agenda. Mediators with their reflective and reframing skills have effectively helped the parties transfer their dislike for each other into a “no need to contact each other” mode. The settlement agreement, therefore, becomes a reiteration of what the parties have already stated as their interests. The agreement requires mediator skill in ensuring that fault concepts remain, for the most part, out of the document. Any agreement that sounds like blame to the respondent could lead to impasse, since one of the main attractions of the mediation for them was to avoid the culpability that court findings against them would necessarily entail.

At the end of the day, it is the true “win, win” scenario that we relish as mediators. Petitioners walk away with an agreement that is permanent without having to go through various and possibly daunting proof obstacles. Respondents avoid court findings against them and can get some mutuality in a “stay away” settlement agreement that serves their interests. So, although from the outside it might seem impossible to settle a highly emotional dispute in an hour in which the parties hold each other in high disregard, the reality is that we do it all the time based upon the part of our mediator training that suggests, at least in part, not to “judge a book by its cover.”

March 4, 2009/by Jack Goetz

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