(pictured: retired Judge hearing for the first time that his job as a mediator is to facilitate a negotiated resolution, not to decide the legal action in the absence of evidence)
I have often bemoaned the spotty state of mediation education, training and mentoring in the ranks of those people who mediate litigated cases. My own recent mediation experience - as a party - makes me even more concerned about the state of mediation practice. As you can see below, it also makes me feel what many people feel post-mediation and that feeling is anger.
For those lawyers who judge mediator competence on self-reports of mediation "success" or on hearsay about the number of "settled case" notches a mediator has on their "neutral" belt, let me say this one more time.
Settlement is not the goal.
A mediator who "settles a lot of cases" is not therefore a "great mediator."
A mediator who "settles a lot of cases," particularly those involving unsophisticated players (i.e., people) may be a terrible mediator.
The purpose of mediation is to serve litigants' justice interests while at the same time helping them negotiate a resolution to litigation if a negotiated resolution is a better alternative to trial.
Below, 27 ways to F$#@up a will contest mediation and 10 things to do if you want to learn your trade.
- don't ask counsel and the parties how you can help them facilitate resolution
- have so little group facilitation experience that you're afraid to let the parties speak during any session - whatever its purpose and however short - that is a joint session
- After you've instructed the parties not to speak in joint session, bark in disapproval when one of them asks the "presenter" to repeat something they said (could you repeat that number?)
- after you've told the parties that you're conducting a "settlement conference," bridle when one of them asks you to clarify that it's a mediation, not a settlement conference, with broader confidentiality protections than a settlement conference provides
- get angry at one or more of the parties
- fail to resolve your anger, thereby failing to resolve a dispute and compromising your neutrality
- although you've said in joint session that the mediation is about reconciliation, when you get into separate caucus, tell the parties "it's only about money"
- when the parties talk about their emotional experience, interrupt them, saying that they have to set aside their emotions to settle the case
- when one of the parties asks you to obtain information not disclosed in discovery, say nothing, heave a deep sigh of disapproval, turn away and leave the room
- when you return with a small part of the information requested, respond to the parties' disappointment by saying "thank you Judge" in the tone of a disapproving parent
- when one of the parties suggests (an hour and a half into the mediation) that they'd like to begin the negotiation by putting numbers on the table, tell them it's "too early" to do so
- twenty minutes later, before you've obtained the requested information and before you've "permitted" the parties to negotiate, tell them you're going to make a mediator's proposal.
- when the parties object, say "then you'll never settle the case."
- if you've already made your mediator's proposal in the other room, fail to understand that you've already F%#ed up the negotiation by anchoring it yourself
- Fail to understand that a pre-negotiation mediator's proposal would deprive the parties of all their potential bargaining room
- Fail to understand that a pre-negotiation mediator's proposal would immediately create impasse from which it would be very very difficult, if not impossible to recover
- when one of the parties opines that a mediator's proposal is premature, become visibly angry and say again that the case will never settle
- when one of the parties asks what you'd base a mediator's proposal on, say, "upon my evaluation of the merits."
- when told that you do not yet possess sufficient facts upon which to provide an evaluation of the merits, insist again that the case will not settle.
- after this exchange, be afraid (or too angry) to deal with the conflict that has arisen between you and one of the parties
- don't return to the separate caucus room until the party with whom you're now in conflict requests her attorney to ask you to please return
- when you do return, refuse to make eye contact with the party with whom you now are now in conflict
- as offers and counters are being proposed and rejected, respond to the process as a waste of your valuable time and a burden on your patience
- forget that you -- not the parties - are the presumed expert in resolving conflict
- when the "other side" finally admits that they didn't account for $100,000 that they admittedly owe, fail to understand a premature "mediator's proposal" would not have taken that $100,000 "mistake" into account
- act like the Judge you once were (imperious, impatient, judgmental and all-powerful) rather than the mediator you now are (or presumably wish to be unless you're just phoning this in from your retirement haven).
UNSOLICITED ADVICE TO ANY LAWYER OR JUDGE WHO WANTS TO MEDIATE WITHOUT MEDIATION TRAINING
- This is not "retirement"
- Learn your trade
- Understand that behind every accusation is a cry for help
- You're still in the justice business
- no dispute is "simply about money"
- If you don't like conflict and don't know how to deal with it, get a real estate license
- The mediation is not about you; it is about the parties
- If you have no group facilitation skills, acquire them
- Follow up with the parties for their constructive feedback
- Understand that although the case settled, it was not you who settled it; this case settled despite you, not because of you