Even seasoned mediators and trial lawyers, may not be aware of participants’ reaction to one aspect of the mediation process—the bargaining. Civil litigation can be triggered by injury, injustice, dashed expectations—things that are emotionally charged, even in a purely commercial case with sophisticated clients. The emotions surrounding litigation may explain why participants in mediations, experienced and inexperienced litigants alike, are shocked and surprised in the normal course of mediation it becomes a bargaining session. It may explain why they may express displeasure and negativity when the bargaining starts and why they tell us that they sometimes leave a session feeling that the process was calculating, and unproductive All the stages of a mediation—introduction, discussion of the merits, the initial demand, the bargaining and negotiation—are necessary for resolution. The participants’ experiences, which include emotions—pain at being injured, anger at being sued—at some point during the day, will be reduced to a number. A payment for pain. A cost for conduct that caused pain. A payment for dashed expectations. A cost for breaching an agreement. Enlisting the right mediator to help prepare participants for this reality and maximize the likelihood that their reactions will not slow down or derail the mediation may be a wise idea.
There are three opportunities for a mediator to assist: the “assignment” suggested at the pre-session call with the attorneys, the “warning” given during the preliminary remarks at the session, and the “acknowledgement” when the bargaining begins.
The pre-mediation session with the attorneys, which now often takes place on Zoom, is absolutely essential to the mediation process. It actually is the beginning of the mediation itself, and the discussions between the mediator and counsel for each party separately are invaluable in providing the mediator with tools that can assist in resolution. So, in addition to the myriad of issues to discuss with counsel, adding a discussion about ways to prepare the clients for the reality of the inevitable negotiation about numbers makes sense. Counsel may have already spoken with their clients about having realistic monetary expectations. For strategic reasons, plaintiffs often make large and unrealistic initial demands, and defendants usually respond with unreasonably low offers. That is fine, but to prepare the participants for the eventual negotiation toward more realistic numbers tied to the circumstances, what if after the pre-session call with the mediator, counsel says to her client that the mediator has requested that they come to the mediation having discussed their second and third moves, and explains how they are going to work toward their real expectation of the outcome?
If the mediator assigns this exercise, it may relieve counsel of raising or even forcing the subject, but the client becomes aware and maybe even can role-play the back-and-forth negotiation process in advance of the mediation. This may reduce the shock of what seems like a sudden and surprising switch to what can be perceived as a cold process. This exercise is not a substitute for talking about the facts, the strengths and the weaknesses of the case and expectations, but if client and counsel engage in the assignment from the mediator in advance, when the bargaining begins, the client may expect this switch and what we have observed as a negative reaction may be minimized or even eliminated.
The next opportunity for mediator assistance is during the introductory remarks at the outset of the mediation, either in a joint session or in individual meetings. Most mediators describe the process, set ground rules and ask the participants to commit to the process. This is the opportunity to manage expectations, to be clear that at the end of the day, success will result from an agreement on a sum of money. Some of us ask for a party’s commitment to the process, to the time it will take, to keeping an open mind and to understanding that the primary tool we have to resolve a case is money. Some mediators discuss the emotions that are associated with different stages of the process. But in every case, this is the time to warn the participants that once we start talking about money it will seem as if suddenly everything has been reduced to a number negotiated by the lawyers in what may appear to be a calculating game; i.e., how much can I get versus how little can I pay. The discussion is about what is the case worth today, which is a number. We are not talking about justice. We are talking about risks of trials, litigation costs and possible awards of attorney’s fees, all those levers that legitimately drive pre-trial resolution. That is the warning.
The third opportunity is the acknowledgement or simple statements made during the bargaining stage. We are there. This is the bargaining phase about which we warned you. The mediator is going back and forth between the parties with numbers. Bear with it. It is normal and necessary.
Most clients do not leave the mediation session with the jaded view that the entire process was a pointless exercise, but at some point, usually in the afternoon, even if not expressed, mediators sense an aversion to the direction the session is going. When that happens, there is the risk that the case will not be resolved or that it will take longer and cost more in terms of time and treasure. Every case is different. This observation and opportunity for mediator assistance may be a nuance in some cases and central to other cases, but eventual resolutions is worth the extra attention at each of these stages.