By Sam Laurin
I have represented clients in numerous mediations for the past 25 years. In the last five years, while continuing to represent clients in mediations, I have had the opportunity to view the process from the other side as a private mediator. Based on this “dual role,” here are a few expectations that I believe the parties should have for each other in a mediation.
What the parties should expect from the mediator
1. The most important job of a mediator is to have a core understanding of the facts and the law.
Understanding and using negotiation techniques are certainly important. That being said, I do believe that first and foremost, a mediator must understand the core legal and factual issues that the parties have presented. As a mediator, I ask myself: If I had to, could I get up and do a passable 10-minute opening statement for either party? I can answer “yes” if the parties have given me meaningful background. I recently represented a party in a rather complicated multiparty bankruptcy proceeding. The out-of-state mediator made a comment to the effect that, “Sometimes in bankruptcy, those who settle first get the best deal.” It was undisputed that this comment had no applicability to this dispute. I pretty much lost any remaining confidence that the case had any chance to settle.
2. The mediator must zealously represent the client (i.e., the deal).
When I am a private mediator, I take very seriously my role to settle a case. I am as passionate about getting a case settled as I would be representing a client at trial. This is not phony on my part, and I think it helps the process. Going back to my bankruptcy example in the proceeding section, had I felt that mediator was really working hard to settle the case (he was not), I may have cut the mediator some slack when the mediator made the comment he did.
3. Understand implicit bias.
Implicit bias is a very important concept that has come to the forefront recently in conversations about diversity, equity and inclusion. It is also important to recognize implicit bias can influence how a mediator approaches a case. Practicing law for the last 31 years unquestionably shapes how I see things. I have to remind myself that the parties and their counsel, not my experience, are what is important. At some point in the mediation, the mediator has to size up all of the factors at play and make judgments about how best to get the case settled. These judgements should not be based on any type of bias. Here is a real-world example of bias being an impediment in a mediation: I represented a client in a multiparty mediation. Counsel, who I viewed as being quite difficult from prior cases, represented one of the other parties. Well, this counsel made a comment and I snapped back at him. When he responded, it was immediately apparent that his point was reasonable. I apologized and realized that I snapped back solely based on my perception that anything he said would be unreasonable. The natural tendency to react how I did must be avoided as much as possible.
For the parties
1. Mediations are not trials: Give a lot of thought to what you present to the mediator.
Most of my mediations are all-day events. Even in all-day mediations, time is limited and you cannot address every nuance of the case. The mediation statement has to focus on what the key issues are. For example, if a party has a claim for $100 and 80% of the dispute (i.e., $80) is over a certain set of facts and law, then the facts and law about that 80% have to be the focus. While it is hard, to spend much time on the 20% in a statement or at the mediation does not help settle the case. When meaningful offers are finally exchanged, the parties can factor the 20% in as they see fit.
2. Defer to the mediator’s framework to discuss the case
This relates to the point above. The mediator is the only one who has truly considered the best approach to get the case settled in terms of what to talk about first, “stipulations” for the purpose of mediation, etc. By approach, I do not mean an actual dollar offer or response. If you disagree with the approach, you will certainly voice your disagreement. Remember the mediator’s approach is nothing more than a framework to get the parties to exchange meaningful settlement offers. At the end of the day, money, not the approach, decides if the case settles. Working within the mediator’s approach can help settle the case.
3. Tell the mediator ahead of time about any important issues outside of the merits.
Long before I did private mediations, I often said that there were actually two mediations: one with the other side, and one between the lawyer and her client. Remember, once a mediator is engaged, nothing prevents you from picking up the phone and giving the mediator a heads-up about any unique issues with counsel’s client. Generally speaking, while it does not take long for the mediator to identify the difficult client, alerting the mediator ahead of time (along with any insight) of the difficult client helps. The same applies to a perception of a difficult client/counsel on the other side. If counsel does not give the mediator a heads-up prior the mediation, particularly if it is a Zoom mediation, it is harder to address such issues.•
• Sam Laurin is a partner at Bose McKinney & Evans LLP. Opinions expressed are those of the author.