Is Mediation a Waste of Time?
By Myer J. Sankary
“Just because something doesn't do what you planned it to do doesn't mean it's useless.” Thomas Alva Edison
"A phenomenon noticeable throughout history regardless of place or period is the pursuit by governments of policies contrary to their own interests ... Wooden-headedness, the source of self-deception, is a factor that plays a remarkably large role in government. It consists in assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs. It is acting according to wish while not allowing oneself to be deflected by the facts."
Barbara Tuchman, “The March of Folly"
How often have you attended a mediation and became so frustrated that you felt like it was a waste of time? What went wrong? Can it all be blamed on the other side who came to the mediation without any intent to meet your reasonable demands? Or was it the fault of the mediator who never seemed to grasp the validity of your claims? When things are going south, is there any way to save the day and actually settle your case? Or if you don’t settle your case, can you discover something about you, your client or your case that will give you a better sense of what to do next? Or was the mediation a total waste of time for you and your client?
To put the question another way, if your case doesn’t settle, was the time you spent in mediation worth the time you charged your client or worth the time you had to spend away from more important productive matters? If your answer is no, that mediation wasn’t worth the time invested, then perhaps you should reconsider what the mediation process is about, and approach the experience from a different perspective.
1. Rethink your objectives. Whether you waste time engaged in any experience is a matter of attitude. If Thomas Edison believed that all of his experimental failures were a waste of time, the world would have had to wait much longer for the electric light bulb to be invented. As quoted above, just because something doesn’t work out the way you expected, doesn’t mean it was useless. If your attitude or belief is that the only purpose for mediation is to reach a settlement based on your terms, then you may need an attitude adjustment. You may lose many opportunities to settle cases that should have been settled.
2. Mediation is not a substitute for a mandatory settlement conference. The MSC is the only experience similar to mediation which some attorneys use as a reference point. It is not a judicial settlement conference. Attorneys think that the mediator will act like a judge to pressure the other side to see their point of view. They want the mediator to be an advocate for their side and to tell them what horrible consequences will befall their opponent. These attorneys are so sure of their position that they do not hear anything the mediator has to say about the merits of the other side and they fail to evaluate the potential risk that they may expose their client to if they proceed with their mission. These attorneys are the ones who think the mediation is useless if the other side doesn’t accept their view of the case.
3. Mediation is an opportunity to get feedback to your claims. Mediation should be seen as an opportunity not only to advocate effectively on behalf of your client, but to test the validity of your arguments against those presented by your opponent by a competent impartial neutral. Effective negotiators should set goals and objectives they want to achieve in the mediation to resolve their lawsuit. On the other hand, competent lawyers must be able to weigh objectively the merits of their opponent’s arguments and adjust their financial objectives to meet the reality of the situation.
The same observation by noted historian Tuchman about governments being “wooden-headed” applies to many litigators who become emotionally involved in their representation. Too often, attorneys are unaware that exhibiting signs of irrational confidence in their case can be a source of self-deception. Litigators who fail to consider the merits of the other side can be an occupational hazard like the behavior of government officials which “…consists in assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs. It is acting according to wish while not allowing oneself to be deflected by the facts.”
The California Rules of Professional Conduct 3-110 require that lawyers serve their clients competently. The rule states, “For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”
The problem is that many lawyers whom I have observed during hundreds of mediations that I have conducted may actually lack the competence required for representing their clients effectively in the mediation process. They may indeed be diligent and skilled at marshalling facts and researching the law, but when it comes to the dynamics of negotiating the best deal for the clients, they seem to be incapable of evaluating the information they receive about the merits of the other side and often ignore or reject signs of danger that could fall upon their own client by their continued pursuit of the litigation. Legal training prepares lawyers to be able to discover and select facts that support their client’s claim. Legal training is also supposed to prepare lawyers to discover and evaluate facts which may undermine or diminish their client’s claim. Legal training, however, does not equip attorneys with emotional maturity – an essential quality for effective representation in mediation.
Attorneys who are emotionally charged in the mediation exhibit a hostile demeanor, use language that attacks the character of the other party as well as his attorney, exhibit an arrogance that belies lack of confidence, and are generally impatient with the process of mediation. Not surprisingly, they open the negotiations with an attitude that they are the only ones who have done an exhaustive analysis of the facts and law of the case and their conclusion is the only one possible – they offer or demand a number that they say is what the case is worth, and there is not much need to spend time trying to convince them otherwise. They appear to be offended when the other side disagrees with their conclusion and counteroffers with a fraction of their proposal, or refuses to make any counterproposal because the offer/demand is viewed as an insult. These are the attorneys who are quick to tell everyone that the mediation is a waste of time. Indeed, for these attorneys and their clients, the mediation may be a useless endeavor.
On the other hand, emotionally mature attorneys will often acknowledge the claims of the other side, but respectfully disagree with their analysis or conclusions drawn from the facts and/or law. They will explain why their examination of the facts and law lead to a different conclusion and invite the other side to address those obstacles which prevent consensus. They appear to be empathetic with the other side but are reasonably firm about their own analysis. The invitation to convince them to see the other side’s point of view leads to a rational discussion and eventually a give and take that include reasonable proposals and counterproposals. Their attitude is one of openness, a willingness to hear as much information from the other side as will help change their point of view, and exhibits a rational approach to joint problem solving. They do not use language that attacks the integrity of the other side. They are cordial, friendly, and helpful.
4. Adopt a new perspective – mediation is always a place to learn! Once you are truly convinced of this, mediation will never be a waste of time. One way to make every mediation worthwhile is to approach the effort with a view that you are coming to discover something new– whether it be a new fact about the case, or whether it be an awareness of some personal behavior pattern of your opponent and/or his attorney, or an understanding of the level of commitment to their position that the other side has taken, everything that you learn at the mediation can be useful and sometime decisive in the advice you give to your client to either settle at the last offer or continue the litigation to achieve greater gains.
5. Give your client a chance to participate. This a great opportunity for your client to learn about the obstacles you have to overcome by hearing directly from the opposition. It is also an opportunity to show your lawyering skills to your client in close proximity to the other side, both figuratively and literally. Clients like to know that you are their advocate - that you can present a clear, articulate, cohesive and compelling story that should lead to a fair settlement. This is the first time that the client can see the other side and hear their arguments about why they won't settle for the amount your client wants. Not only will you get a chance to present the outline of your case to the other side for the benefit of your client, but you will demonstrate how well you can respond to those obstacles. Further, in private confidential sessions with the mediator, you can show your client how good your negotiating skills are by predicting the opening responses from the other side, and demonstrating that you are prepared to make reasonable and necessary counter proposals to reach your objectives. Clients like to know that their lawyers have thought through the process and have a game plan. It gives the client confidence that their lawyer knows what he/she is doing. The client also can receive a reality check from the mediator which can be invaluable for you when the final proposals are less than the client's original expectation. You can point out to your client that an impartial experienced neutral has provided a sobering and realistic perspective which you should seriously consider. A skillfull mediator can praise your efforts and give you comfort that the final settlement offer your client must take is a good one under the circumstances. If orchestrated properly, the mediation can be a valuable investment of your time and effort, even if it does not lead to a settlement on the day of the mediation. If handled correctly, the mediation will lay the foundation for a good settlement sometime before trial.
Here are some tips about how to make your mediation worthwhile even though you may not settle by the end of the proceedings.
PICK THE RIGHT MEDIATOR. Selection of the right mediator is a major factor affecting whether the mediation will be a waste of time. Does the mediator have inquisitive rational demeanor? Is he or she capable of giving you an evaluation of your case as well as the other side’s case which will give you the perspective of an experienced impartial observer whose opinion you respect? Is the mediator an experienced and trained negotiator who can help the parties make the right moves at the right time? Does the mediator have good communication skills and exhibits emotional maturity? Does the mediator have a good understanding of human emotions and behavior that can be shared with the parties?
(reprinted from Big News for Small Firms, a publication of the State Bar of California Solo and Small Firm Section.) Copyright 2004