In a recent presentation to mediators in Michigan, I asked the audience to describe what was frustrating in their mediations. They often struggle when lawyers and parties are not prepared when they go to mediation, have unrealistic expectations, and act very emotionally.
Their reactions prompted me to write this short article in the Michigan Dispute Resolution Journal providing detailed techniques for addressing these problems based on the book, Litigation Interest and Risk Assessment: Help You Clients Make Good Litigation Decisions. This post summarizes that article, which focuses on mediation of civil cases in which all parties have legal representation. The principles can be adapted in other cases are relevant for both advocates and mediators. Faculty might assign the article in your courses.
Dealing with Lack of Preparation
Arranging Oral and Written Communication. Ideally, mediators would have good communication with lawyers before convening a mediation. This generally should include both phone or video conversations as well as submission of written statements.
Unfortunately, many lawyers do not provide timely or helpful written materials. To address this problem, mediators can initiate conversations well before they convene the parties. By starting with these conversations, mediators may motivate lawyers to provide better and more timely written materials.
In these conversations, mediators might ask about how they could be most helpful, strengths and weaknesses of the legal case, potential barriers to agreement, issues that are or are not negotiable, and intangible interests that might prompt parties to accept a less favorable financial settlement.
Mediators might ask lawyers to provide information in writing such as the identity of all important individuals or entities involved, nature and amount of damages, key legal issues, disputed and undisputed facts, status of discovery, and prior negotiation efforts, if any.
For parties to be fully prepared, mediators should encourage lawyers to have substantive conversations with their clients before mediation is convened. The conversations should describe the mediation process, issues to be discussed, mediator’s role, and mediation strategy.
Using Multiple Mediation Sessions. Despite mediators’ best efforts to stimulate effective preparation, some lawyers and parties will not be well prepared when they appear at mediation sessions. So mediators might experiment by planning for multiple video mediation sessions.
Mediators can plan for the possibility of two-session mediations, using the first session to prepare for a second session if needed. If parties settle at the first session, they don’t need a second session.
If people need more information and time to be ready to settle than in a single mediation session, mediators could use the first session to help them identify what they would need to be ready. Based on an initial mediation session, the lawyers could plan “homework” before the second session to (1) complete specifically-needed discovery, (2) obtain expert opinions, narrowly-focused arbitration awards, or court rulings on critical legal issues, and/or (3) consult with important individuals or entities relevant to the dispute.
If the parties participate in a second mediation session, it is likely to be more productive, efficient, and consensual than typical mediation sessions. People would not need to repeat all the work from the first session and they could start by focusing on the pivotal issues.
Managing Unreasonable Expectations
Lawyers routinely use a counteroffer negotiation process in which each side starts with extreme positions and makes grudging concessions trying to end up with a favorable settlement. They base their positions on disingenuous claims about the likely court outcome. Everyone knows that these stories are exaggerations at best and fibs at worst. If lawyers took truth serum, they would admit that they don’t fully believe their own arguments.
Unfortunately, mediators don’t have truth serum. But they can cite scientific evidence that many people take huge risks going to trial and often get worse results than the other side’s last settlement offer. When lawyers make unrealistic claims about the likely court outcome, mediators can cite this research and ask how they and their client would feel if they got a worse result at trial than the other side’s best offer in mediation.
Mediators also can ask about arguments that may not convince a judge or jury. At trial, many judges or juries would have questions about particular issues. Why would the judge or jury will see these issues the same way that the lawyers do? How sure are lawyers about their assumptions about what would happen in court? What would might increase their confidence that they would win? What might decrease their confidence?
The counteroffer process often focuses only on expected court decisions without considering the tangible and intangible litigation costs of going to trial. This is problematic for two reasons. First, the parties actually experience the net results after deducting these costs, not just the trial decision. Second, it may be easier to reach agreement by explicitly including calculations of these costs. So mediators might focus on bottom lines, not only the expected court outcome.
Dealing with Strong Emotions
Mediators often struggle when parties and lawyers express strong emotions. Mediators should try to figure out why they are doing so, which are important clues about what’s important to them. Mediators should use good listening techniques to understand, empathize, and acknowledge parties’ feelings and concerns. If parties feel that they are being heard and their concerns are valued, they are less likely to have disturbing emotional outbursts in mediation.
Causes and Consequences of Litigation Stress. Conflict and the litigation process almost always are stressful for parties. Accusations can be extremely painful and undermine people’s self-image. Parties may be asked to provide detailed accounts of traumatic events, which they may have had to recount many times.
Litigation stress can reduce the quality of parties’ decision-making, especially when they are emotionally exhausted over an extended period. As a result, they may act impulsively, deciding to go to trial rather than settle a dispute.
When organizations are parties, their representatives may experience similar and additional stresses. As a result of litigation, their organizations may suffer organizational dysfunction, reputational damage, and lost opportunities.
Parties may feel great pressure to reduce their expectations as they repeatedly make concessions that seem unrelated to the facts and that seem unfair. Their lawyers may have given optimistic assessments at the outset of their case, and their assessments often become more pessimistic and uncertain over time. After an extended struggle, they may grieve the loss of their hopes for a satisfying outcome.
Preventing and Managing Problematic Expressions of Emotion. Obviously, it would be helpful to address parties’ concerns from the outset so that they are less likely to make problematic outbursts such as raising their voices, using inappropriate language, or taking threatening actions. The techniques for doing so are consistent with good mediation techniques generally.
Mediators should start by developing a good rapport with parties, showing that they want to help them deal with their conflict, not just terminate their case.
In initial caucuses, mediators should ask about parties’ experiences, goals, and concerns about their case. Mediators might ask about some or all of the following issues, which can reveal issues that might trigger strong responses in mediation. These include what’s most important to the them, which may not be getting the most favorable financial outcome. Mediators can ask how their goals that might be affected by continued litigation and trial, which might include effects on relationships and reputations, time constraints, and distraction from other activities.
When working with organizational representatives, mediators should ask about how litigation and trial would affect the organization. This might include questions about effects on the organization’s ability to focus on other goals, how much time of its personnel would be diverted to litigation, and possible effects on their reputation and relationships with their stakeholders.
Mediation is hard. Conflict is stressful for everyone. Litigation aggravates stress and can stimulate counter-productive reactions. Lawyers are busy. They may not have the time or inclination to prepare themselves or their clients to mediate productively.
So it’s completely foreseeable that mediators will confront challenging situations due to lack of preparation, unrealistic expectations, and strong emotions. This article elaborates on the preceding suggestions to help mediators successfully manage these challenges.