Your article is very well written, but I dispute a point you make. In my 30-year career as a business litigator, I was often asked to recommend mediators. Almost always, attorneys told me they wanted mediators who were aggressive, arm-twisting interventionists. They often specifically said they did not want the sort of mediators who, claiming to value the "process," would not twist arms. I know many [Southern California] attorneys who travel up to the [San Francisco] Bay Area for aggressive mediators in one particular firm because they believe there are few to be found in Southern California. I recall a mediation with that firm where the mediator told my client, a very sophisticated CEO, that he would be an idiot if he did not accept a $5 million dollar proposal. I cringed. The CEO loved it, and settled. It seems we have surveyed different samples in arriving at our conclusions, but I did enjoy your article.
This jurist's comments are serious and deserve serious reflection. Ultimately, the reality he reflects should cause the commercial mediation community to reject two clods of conventional wisdom that have retarded the growth and acceptance of our services by many of our litigation brethren. To satisfy clients, commercial mediators must learn to love—not disdain—"evaluation." To understand both why and how to do that, commercial mediators must also remember to love—and again, not disdain—lawyers.
How I Learned To Stop Worrying and Love "Evaluation"
"Evaluation" in commercial mediation is nothing more than sharing helpful information based on our knowledge, experience, and training. It's common decency! We expect it from all professionals, commercial mediators included.
It's instructive to compare developments in psychotherapy, a field to which mediation is sometimes compared. Remember the stereotype of the monocle-wearing Freudian therapist, sitting near the patient on the couch, never hearing a word? Conventional wisdom at work once again. Now, a more popular approach is typified by Dr. Mark Goulston of Los Angeles, a psychiatrist, partner at the national management consulting firm, Ferrazzi Greenlight, and author of Get Out of Your Own Way at Work (Perigee, 2006):
I will occasionally say to my clients, "What you're attempting to do is stupid, foolish and even idiotic and I will fight you on it rather than have you wake up in a week or a month to realize just how destructive to you it was."
For some fortunate reason, I am rarely perceived as condescending or judgmental. This has enabled me to be very direct, blunt, and use very foul language to make a point, because it comes off to the client as clearly in their best interest.
If the intent is to humiliate, ridicule, belittle or excoriate—as, in a mediation, some lawyers might want a mediator to do to retaliate for how their "unreasonable, unrealistic, and completely infantile" clients have treated them—then the words won't even matter. The negative tone, pitch and body language will say it all.
But if the intent is to let the patient, or client, stay as "Grand Poo-Bah" but still do the right thing in terms of putting this chapter behind him or her, then you can use almost any words you want. Over 90 percent of the clients with whom I have used this approach have liked my shows of force in this way and many have even thanked me, admitting they know that they can really get in their own way.
So, the challenge: If psychotherapists can take this activist approach, why can't commercial mediators? Because, let's face facts, it is hard for lawyers to break bad news to their own clients. The lawyer's fears are real: Loss of client confidence and loyalty, reputation for toughness, future business. So, as Dr. Goulston has done, commercial mediators must heed the wisdom of Alexis de Tocqueville in Democracy in America: "Men do not receive the truth from their enemies, and their friends scarcely offer it to them; that is why I have spoken it."
Beyond the Platitudes
To be effective, the mediator's evaluative truths must go beyond the paleomediation bromides of the 1980s, "This case will cost a lot to litigate" and "Lots of people have been surprised by losing when they should have won." If these are the mediator's only tools, then as soon as he leaves the room, someone is sure to sneer dismissively, "He says that to everybody." He might as well walk into a bar and ask, "What's your sign?" Mediators need to engage based on the specifics and realities of each particular case. Just as psychotherapy patients expect therapists to be direct, honest and specific, in an appropriate way, so do the clients of the commercial mediator.
But how direct, honest, and specific is it appropriate for a mediator to be? The answer lies in the concept of reciprocity. Just as litigators need honesty from mediators, mediators need honesty from litigators. Mediators need signals from litigators regarding how far to go. A mediator cannot effectively work at cross-purposes from a client's own lawyer. Although few clients understand legal ethics, they do understand, at some inchoate level, that their own lawyer owes them a fiduciary duty of undivided loyalty, and a mediator does not. At some level, the mediator is interested in "the deal." So if a mediator's advice conflicts with a lawyer's advice, the odds are overwhelming that the client will favor her own lawyer over the mediator.
Litigators and mediators need to communicate, before the day of mediation if possible, about the intramural challenges the litigator faces, so that together they can plan the interventions with the client that are most likely to work.
Critically, look at where our judge wants the mediator's evaluative missile fired: At his own client. In this regard, the judge is 100 percent right. With appropriate preparation and coordination between a litigator and a mediator, an emotional, stubborn, or even ideological client can often be nudged from anger into acceptance, and then settlement. But sometimes, clients are not ready to put a situation behind them. It can take some time for the steamship of emotion behind a lawsuit to make a U-turn. Excessive pressure in these cases will only backfire. The art of the mediator, in teamwork with the litigator, is therefore to assess the client's likely reaction to different kinds of influences or pressures, and to be able to change course or even stop if nothing seems to be working that day. That's where appropriate follow-up is key.
By contrast to our Judge's scenario, if one side wants the evaluative assault directed at the other side, it is not likely to work. If your case is really as strong as you think it is, and nobody on the other side "gets it," even after months or years of litigation, there's probably not much a mediator can do. With luck, though, opposing counsel does "get it," and will signal the mediator that help is needed with his client as well.
How I Learned To Stop Worrying and Remember To Love Lawyers
Effective commercial mediators approach their task with malice toward none and charity toward all—even lawyers. Much conventional mediation training takes the condescending view that lawyers just get in the way, and mediators have to eliminate them at best, work around them at worst. More paleomediation cliches.
Every year, about 500 lawyers ride up the elevator to my office. Maybe 2 percent do a poor job. The other 98 percent are well-prepared and are putting their clients' interests ahead of their own. That's my definition of a good job. So I trust them until they prove themselves unworthy of trust, and I am rarely disappointed. Conversations with other commercial mediators lead me to believe that my experience is typical. So when litigators ask me for help with their clients, I am almost always happy to oblige.
Mediators are here to help lawyers and their clients make the best decisions possible under the circumstances. Most will decide to settle, but some will not. When we follow up with those who do not, their emotional states may change and more settlements will follow. For those few risk-takers who, with their eyes wide open, insist on vindicating their Constitutional right to a jury trial, well, it's a free country, right?
In every case, though, the people in the room deserve our best. As mediators, our experience, skills, and training give us knowledge, opinions and—if we are lucky—wisdom, that can help them make better choices. Generally, we need not resort to vulgar obscenities, but on those few occasions when we must do so to get our point across, so be it. Whether our diction is elevated or crass, though, a spirit of charity and loving kindness toward the litigators and their clients requires that we not sit silent.