This topic assumes something that may or may not be obvious. If you hire a private mediator, presumably you are paying more than $600 for a half-day mediation. If you are paying premium prices, you have every right to expect a premium service. You may be selecting a private mediator based on their knowledge of substantive law, their knowledge of mediation procedure, protocols and tactics, their past experience either as a lawyer, judge or otherwise, or their problem-solving skills to name but a few of the primary attributes of a private mediator.
When you hire a roster mediator or have a roster mediator appointed, there is significant variability in relation to the mediator's knowledge, experience and training. Roster mediators may be new to the market or they may be veterans in the marketplace.
I had trouble starting to write this paper because my initial thought was, "Isn't the goal of both roster and private mediators the same? Settle the case." Even if your mediator is the nicest person in the world, it comes down to what they bring to the mediation process. Can the mediator get the job done and close the deal? Sometimes, one or the other or both of the parties are not there with the intention of settlement. You can only lead a horse to water; you cannot force it to drink. Ultimately, my thought process brings me to the point where you have either selected a roster mediator, had a roster mediator appointed or you have been told by your client that you must hire a roster mediator. What do you do? How does your approach to mediation change?
1. Do Your Homework
Not all roster mediators are created equally. Speak to your
colleagues, either within your firm, in your practice area or through
professional associations. Review the mediator's website. Find
out if the mediator has written any articles and review them. There
are undoubtedly more and less capable roster mediators. While you,
your client or both may wish to control the cost of the mediation,
it is irresponsible not to put some effort and thought into the
selection of the roster mediator.
If you are having difficulty gathering information and
reconnaissance on a prospective mediator, call them. Generally
speaking, people love to talk about themselves. Ask the mediator
about their background and experiences which bring them to
mediation. Ask the mediator about their experiences before becoming
a mediator. Perhaps I have a greater interest than most in making
the following observation. Simply because the mediator is not a
lawyer does not prevent him or her from being an effective neutral.
I suggest, that a neutral who has not spent a significant portion
of their professional life working as a lawyer or as an
institutional client may bring a certain freshness of perspective
to the process.
Do your best to match the prospective mediator to the matter in
dispute. Is the mediator known as directive, facilitative,
evaluative, etc.? What are the communication skills of the
mediator? If you ask a few pointed questions of the mediator as
part of your due diligence and listen carefully for the answers,
you will undoubtedly gain an appreciation for their communication
skills, personality and the like.
When you meet with your client to prepare for the mediation, do
what you can to realistically set or control their expectations.
Mediators generally are not miracle workers or magicians though,
every now and again, a skilled mediator can pull a rabbit out of a
hat. This is probably less likely with a roster mediator but it
doesn't mean they shouldn't try.
When you hire the mediator or when you meet the mediator at the
beginning of the mediation session, do what you can to
realistically explain your expectations for the mediation and of
the mediator specifically.
2. DESIGN YOUR MEDIATION MEMORANDUM WITH THE ROSTER
MEDIATOR IN MIND
Generally speaking, your memorandum should be designed for the
target audience which should normally be the decision-maker on the
other side of the table. While the mediator is less critical, he or
she needs a sufficient briefing of the facts, evidence and law to
assist the parties in going about their negotiations. A roster
mediator, depending upon his or her background, training, education
and experience, may need more. You may have to provide the mediator
with a description of the law, copies of statutes, regulations or
key judicial decisions. You may have to provide the mediator with a
more detailed factual discussion so as to equip the mediator with
the tools so that he or she can be part of the solution rather than
part of the problem.
3. Limit The Size Of The Mediation
Memorandum
One should bear in mind that a mandatory mediation with a roster
mediator involves one hour of preparation and three hours of
negotiations. If you provide the mediator with 20-30 pages of text
or dozens of tabs, you put the roster mediator in a challenging
position. Will they limit their preparation to one hour and ignore
what may be important information or documentation? Will they
devote extra time to preparation and expect to be paid for their
effort? Will your client be prepared to pay for additional
preparation time? I can well imagine the additional frustration on
your part and that of your client as you field phone calls or
emails in this regard in the days leading up to the
mediation.
Best practices would be to keep the narrative portion of the
memorandum fairly brief and focused. Identify points of agreement,
which will constitute the beginnings of a settlement agreement, and
identify points of serious disagreement. Suggest ways and means to
go about bridging those points of serious disagreement. Generally
speaking, less is more.
If your instructions are to proceed through mediation because it is
mandatory and if your instructions are not to settle the matter
short of a capitulation, from the perspective of one side or the
other, you may want to make this clear to all concerned in the
memorandum or in a without prejudice communication in advance of
the mediation. That said, there are always possible resolutions;
never say never.
4. Limit The Length Of The Mediator's Opening
Remarks
While I have heard some wonderful opening remarks from some very
skilled mediators, I suggest it is a poor use of time to have the
mediator explain the history of mediation or all of their skills
and abilities and experiences which make them suitable as a
mediator, consuming 20 to 30 minutes in the process. Counsel should
perform the mediator's function and educate their client in
advance of the mediation as to the process generally and what they
can expect to hear and to happen at mediation. Consider asking the
mediator to attend a few minutes in advance of the official start
time of the mediation so that they can explain whatever they feel
compelled to explain to your client before the opening session
begins.
Roster mediations are typically restricted to three hours of
negotiations. If your matter is capable of resolution, it is
imperative that you and your mediator get on the same page as soon
as possible with a view toward getting opposing counsel and their
client onto the same page soon thereafter. I try to start my caucus
discussions before the opening session and kick off the
conversation with a broad question such as, "What are you here
to do today", "What do you want to get out of our time
together" or "What do I need to know that is not reduced
to writing". It is surprising how forthcoming some people, be
that counsel or their clients, will be. It helps me identify
interests or issues to focus on.
5. Limit The Length Of Opening Statements By
Counsel
Focus on matters or issues where there is agreement [building
bridges] and focus on matters where there is disagreement which
will realistically hamper your ability to settle the matter. Offer
constructive suggestions about how areas of disagreement can be
addressed. A simple example may assist in this regard. The matter
involves a two car collision at an intersection controlled by
automatic traffic signals which are operational. There are no
independent witnesses. Each driver insists that they entered the
intersection on green and the other driver failed to observe a red
traffic signal. It probably does little good to review the evidence
of each witness in detail. It probably does little good to take
the cheerleading approach and suggest that your client is credible
and likeable and the other side is not. Shockingly, opposing
counsel will tell you that their client is credible and likeable
and your client is not. It would be refreshing for one of those
lawyers to incorporate in their opening remarks a willingness to
resolve the matter on a 50/50 basis, having regard for the
uncertainty of the trial process.
6. Don't Read Or Regurgitate Your Brief As An Opening
Statement
If at all possible, you should say something new in your opening
that is not in the brief. Give a new perspective, slant or angle to
something you have already addressed in your brief. Use your
opening to achieve clarity in relation to the content of your
message and points of emphasis. Use your opening to humanize the
process. If you are addressing an unsophisticated decision-maker,
tailor your message for your audience. Be sincere, whether you mean
it or not. Avoid sticking your fingers in the eyes of the opposing
party or their counsel. The decision-maker will have greater
challenges making an informed and sensible decision if you elicit a
negative emotional response from them. You should appreciate that
there is an expectation on the part of the decision-maker on the
other side of the table that everything you say must be good for
your client and bad for them. As a result, they start the process
with a tendency or propensity to disbelieve anything and everything
you say. If you start your remarks with comments that the
decision-maker on the other side of the table is likely to agree
with, you may find that person to be more inclined to listen to the
things you have to say regarding the points of disagreement.
7. Give The Mediator What They Need To Understand Your /
Other Client's Position
Tom Cruise, in Jerry Maguire, said, "Help me, help you".
If there is a critical case on point, give it to the mediator or
give him or her a summary of the case law. Identify the important
moving parts of the case which will drive the negotiations. Educate
the mediator. Your objective should not be to convince the
mediator, as the mediator has no decision-making power; rather,
your objective should be to arm the mediator with the tools,
ammunition or arguments so that the mediator can be effective in
the other room. Understand that the other side will be doing
exactly this from their perspective. Don't be surprised when
the mediator returns to your room with "pushback".
Don't shoot the messenger. Work with the mediator to respond to
the pushback in a productive fashion.
The roster mediator, given their background or experience [or lack
of experience in a particular practice area], may not be able to
assist you and your client to get to the "right number".
However, a roster mediator should be able to assist you in the pace
of your negotiation moves and may be able to offer some insight
gathered from time spent in the other room.
The roster mediator should be expected to do more than simply
courier numbers or messages from one room to the other. Subject to
confidentiality considerations, the roster mediator may be able to
offer some insight as to who seems to be controlling the other
room, the temperament or temperature in the other room, etc. The
roster mediator may be able to offer insight into other factors
impacting settlement negotiations in the other room.
Be prepared to acknowledge areas of weakness in your client's
case in caucus. This can lead to points of agreement with the other
side and potentially lead to a snowball effect in terms of an
overall compromise and settlement agreement. Search for ways to say
"yes".
8. Consider Bringing The Roster Mediator Into The
"Inner Circle"
This issue is really one of trust and confidence. Can you trust the
mediator to respect the confidentiality of what you have told him
or her? Do you have confidence that the mediator can use this
information to facilitate ongoing negotiations and an ultimate
resolution? For example, you may want to inform the mediator as to
your monetary target or range. The mediator may be able to assist
you in planning out several moves or steps ahead. Monetary movement
is one of the clearest and most transparent forms of communication
at mediation. Another example may arise where your client, private
or institutional, is not listening to you or taking your advice.
Some mediators can be very helpful in gently probing this area and
determining whether they can help you bring your client on
side.
Despite the foregoing, there is no question that many people at
mediation "play" the mediator and the mediator may be
"playing" those people as well. Mediation is not an under
oath process. For example, if you tell the mediator that this is
your final demand or final offer, don't be surprised or
offended if the mediator challenges this statement later in the
mediation. Some use the word "final" as definitive - it
should elicit a yes or no reply but no counter offer; others seem
prepared to use the word "final" as part of the
negotiation process.
9. Good Ideas Are Not Within The Exclusive
Jurisdiction Of The Roster Mediator
The roster mediator may be the custodian of the process for the
day. However, they do not hold an exclusive license over good
ideas. Don't hesitate to offer your thoughts and suggestions.
Subject to your views on the extent to which your client should
have communications with the mediator, encourage the client to
offer their thoughts and suggestions. Everyone comes to the
mediation with different experiences. Some of those experiences may
lead to insights on a particular issue or problem and, ultimately,
to problem solving ideas and potential for resolution.
10. Don't Let The Mediator Get In The
Way
If you find yourself at mediation with a roster mediator who is not
up to the task, use the mediator for what they can do rather than
focusing on what they cannot do. If they are simply working as a
courier pigeon, conveying offers from one room to the other, let
the "money talk". If necessary, give the roster mediator
explicit instructions on the message to be delivered and the
wording to be used. Rehearse the message and ask the mediator what
they plan to say in the other room. Give consideration to a
resumption of the general session. Another option would be ask the
mediator to bring you into the caucus room of opposing counsel so
that your message can be delivered in a clear and unfiltered
fashion. A further option is to suggest a meeting of just counsel
and the mediator. This does raise some concerns and sensitivity
amongst clients. Unsophisticated clients may be concerned about the
lawyers conspiring against them. Sophisticated clients may feel
insulted.
11. Continue With The Roster Mediator Until There Is
Resolution
On some days, the matter cannot be settled on the day of the
mediation. This can be due to a number of factors including missing
information and documentation, lack of authority and overvaluation
or undervaluation to name but a few. Use the roster mediator to
understand what may be lacking in your room or the other room and
what can be done to address this deficiency going forward. Use the
roster mediator to follow up with you or opposing counsel or both
in the coming days, weeks and months. Some roster mediators may be
prepared to stick with the matter at no additional cost. If
necessary, make a commitment to pay the roster mediator for their
additional time in this regard. If the roster mediator can help you
resolve your matter, it is money well spent.
12. Don't "Mail It In"
There are many occasions when there are no realistic prospects to
resolve the matter at mediation. However, mediation does provide an
opportunity for you to have the ear of the opposing decision-maker.
You may want to explain your perception of the weaknesses in their
case or the strengths of your case. You may want to explain why you
cannot resolve the matter. You may want to ask questions of the
opposing party, whether to gain information to help you resolve the
matter going forward or to gain a better appreciation for the
opposing party as a potential witness. You may want to ask for
documentation to address gaps in your understanding of the matter
which may lead to settlement down the road. You can certainly use
the opportunity to better gauge the likability of the opposing party
and the competence of their counsel. You should leave the mediation
with more information and a better understanding of the matter and
the impediments to resolution.
13. Roster Mediation Economics
Many clients, institutional or otherwise, wish to engage roster
mediators as a cost-saving measure. This is a legitimate concern
and a modern-day reality. Some roster mediators will view their
compensation as a step backwards; other roster mediators will view
this compensation as very rewarding. Like most things, it is a
matter of perspective. That said, no mediator, roster or private,
should talk the talk unless they are prepared to walk the walk. You
have every right to expect your roster mediator to be engaged,
energetic and committed to the process. The roster mediator cannot
compel anyone to do anything and, as a result, should not be held
responsible for the fact that the matter does not settle.
Similarly, the roster mediator may get too much credit for matters
which do settle. The roster mediator can and should be judged on
their commitment to the process, the creativity of their
problem-solving, their tenacity and resolve, their communication
skills, their empathy and their understanding of the issues and
problems in a given matter.
Conclusion
Despite there being many obvious differences between roster mediators and private mediators, many of the expectations of counsel and their clients can and should be the same: commitment to the process, last person to give up on the potential for resolution and clear communication skills come to mind among other qualities. Any mediation is an opportunity for settlement. Every mediation is an opportunity to discuss the matter and to learn something new about the matter, the other counsel and the other party that you did not know or appreciate going into the mediation. Every mediation is an opportunity to listen. My late great-grandfather, Jack Cooper, used to say, "You have two ears and one mouth; use them in those proportions". Listen for cues and clues that may give you insight into resolution of the matter, either at the mediation that day or at some later time. Any decent mediator, private or roster, knows that just because the matter did not settle at the conclusion of the mediation does not mean that the matter cannot be settled down the road. I submit that you can and should expect your mediator to follow up after the mediation concludes.
Mediation is not a sporting event. Batting averages may be the measurement tool which allows batters to enter the Hall of Fame. Settlement percentages for mediators may be illusory. Evaluate your mediator based on their commitment to keep people working away at issues and to keep people engaged in the discussion. The mediator should be the last person to throw in the towel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
