Mediation Is Not For Sissies

Last month, a reporter from the Los Angeles Daily Journal asked me a question about mediation which gave me quite a chuckle.

The topic was the exciting mediation program which Judge Robert
Letteau has pioneered in the Probate Departments of the Los Angeles Superior
Court. The question concerned whether contested probate matters might benefit
from mediation, because, as the reporter saw it, mediation is a “non-adversarial”
process.

The chuckle came because, as most anyone who has been through more than a couple of mediations can tell you from first-hand experience, it is
hardly a non-adversarial process. In the mediation room, particularly at the early
stages of a mediation, the parties — and their lawyers, too — are often as adversarial,
as confrontational, as overtly hostile to each other, as they are in any other forum.

When mediators shmooze, the conversation often turns to the roughest,
toughest, wildest, wooliest, brass knuckles, no-holds-barred mediation moments
when lawyers and clients have shown that the vigor of their advocacy has been
honed, we might say, to excess. Mediators at times must step between participants
who are about to come to blows; must pry hands free from documents seized from
the other side of the table; must prevent participants from destroying physical
evidence which finds its way into the mediation room; and otherwise fling their
bodies on the grenades of the participants’ passions.

While this does not happen all the time, passions erupt and tempers
flare in mediation with enough intensity, and with enough frequency, that whatever
else mediation may be, it does not deserve to be considered a “non-adversarial”
process.

On deeper reflection, this false, but common, perception of mediation
as “non-adversarial” may deter litigating lawyers from using the process. Some
lawyers avoid mediation because they perceive it as being only for the faint of heart;
for those who are afraid to test their wits and their clients’ fortunes in the adversary
crucible of litigation; a cop-out process. They think that mediation is for sissies.

My message to litigators who think that mediators make you burn
incense and go barefoot is to reconsider your aversion to this form of ADR. In
actuality, if you are a litigator because some part of you resonates to the gladiator
role, then the opportunities for your most brilliant portrayals will — I guarantee it —
take place on the proscenium of the mediation.

If your past experience with mediation has not lived up to this billing,
perhaps you were just linked up with the wrong mediator. There are some
mediators who have made litigators uncomfortable with what was perceived as
inappropriate pressure to compromise for the sake of compromise, to make
concessions which were out of proportion to the merits of the claims and defenses,
or otherwise to “make nice” when the participants simply saw no reason to do so. If
this has been your experience, you may have vowed never to subject yourself to
mediation again, and gone on to share your scorn for the process with your partners,
peers and clients.

Even if you have suffered this way, though, you still might find yourself
being instructed by your clients, or invited by the other side, to give mediation one
more chance. Tread cautiously in doing so. This time, to make the experience pay
off, choose your mediator as carefully as you would choose any other expert. The
mediator who provoked your disdain may have been the one whose name your
partner recalled from a chance introduction; the last one from whom you received a
professional announcement in the mail; or the one you were randomly assigned from
a volunteer panel. Just as you wouldn’t engage an economist, a handwriting analyst
or any other expert based on such flimsy due diligence, you should apply more
rigorous criteria to the selection of a mediator. Get resumes. Check references.
Talk to the mediator. Then make your choice.

The mediator you select should have the experience, training and
temperament necessary to be effective in your particular case. The attributes which
add up to effectiveness, however, will vary from case to case, and may be
challenging to distinguish. The unique features of individual parties, lawyers and
cases will lead you to different mediators at different times. The key overall inquiry
is whether the proposed mediator is someone who you feel will understand the
reasons why the case has not yet settled, and who will be well-equipped to help the
participants overcome whatever those barriers happen to be.

Many litigating lawyers focus exclusively on whether the mediator has
expertise in the substantive law of the dispute. In some highly technical or complex
cases, whether the mediator is an expert in the applicable law may indeed be the
most important question. But in most cases, skilled litigators bring enough
substantive knowledge to the room to allow the mediator to get up to speed quickly
and facilitate the negotiations. After all, if you can’t explain it to the mediator, how
will you ever explain it to the judge or jury?

So, even in highly technical or complex cases, mediators who are not
experts in the substantive law may be highly effective. Regardless of the degree of
complexity which the legal issues present, a mediator who is expert in dealing with
difficult personalities or who has extensive experience with the overall burdens of
protracted litigation may be the most effective if, in your opinion, the key barrier to
settlement is a personality clash or an inability of one side or the other to appreciate
the full costs and delays that full-scale litigation may entail. The litigator has the
responsibility to diagnose why the case has not yet settled, and then select the
mediator best equipped to dispense the appropriate prescription. With the right
mediator selected, the process can proceed to a resolution with which all parties will
feel satisfied, if not downright enthusiastic.

Consider the contrasts between in-court litigation and mediation in the
hands a mediator in whom all parties have confidence. In court, the litigator is
shackled. The concept of relevance limits the subjects on which the litigator can
question. The pace of litigation is slow; depositions take weeks to schedule and
trials take years to reach. Judges frustrate some of the best questioning on the
grounds that it is argumentative, cumulative or assumes facts not in evidence. The
decorum of the courtroom and even the deposition room — especially with an
increasing number being recorded on videotape — is enforced by the legal equivalent
of the Marquis of Queensberry Rules! And so even the most victorious clients
rarely come away from litigation with the degree of emotional satisfaction which
they expected their victories to yield. Victories often come only after significant
cost and delay. Frustration of even disappointment with you, the “victorious”
lawyer, is a frequent byproduct of your client’s frustration and disappointment with
the litigation process. This is hardly likely to generate repeat business.

Mediation is as different from this as different can be. As a lawyer in
the mediation room, you live, you survive, you succeed, by your wits and your wits
alone. The Marquis is gone. Mediation can be the equivalent of guerilla warfare.
Generally, after brief opening statements during which the mediator asks the sides to
take notes and not to interrupt each other, the gloves are off. The shackles of civil
procedure and evidence law no longer limit the bounds of effective advocacy. No
question which the participants find important enough to ask is “irrelevant.” With
all parties present, the interplay is instantaneous, not protracted over weeks or
months. And many of the best mediators, in an effort to help the parties surface the
true conflict and then work through it to a constructive result, actually encourage the
participants to ask (and answer) questions which cut to the heart of the emotional as
well as the financial reasons the parties are at each other’s throats.

A client comes to a litigator with a story about what has happened to
him in his businesses or his life. The litigator wedges that story into a template of
legally cognizable claims and defenses. In court, the discussion is forever after
limited to the aspects of the story which is visible through that template. Mediation
reverses the process, and allows the story to be probed, examined, argued and —
hopefully — reconciled, more quickly and at lower cost, and sometimes more
completely.

Litigators, especially those who pride themselves on an “aggressive”
style, should flock to this forum. If you have confidence in yourself, your client and
your case, then you should welcome this opportunity to have at it. Mediation often
allows you to take dispute to levels far beyond those which the court system may
allow. Yes, in mediation, the legal issues as set forth in the pleadings can and will
be discussed in depth; but you can also discuss a lot more.

Plumbing the depths of the conflict, though, is not an end in itself.
Mediations sometimes end with collaborative, forward-looking, mutually beneficial
agreements. Many more times, mediation serves the clients’ interests simply by
bringing the lawsuit to its end faster and at lower cost than continued litigation
would permit. The ability of participants to reach these highly utile agreements is
directly proportional to the extent to which the underlying conflicts are first
explored.

Generally, the parties are in litigation in the first place because they
have not been able to work the dispute out on their own. There is anger, or
something else highly-charged between them, which prevents the rational
negotiations which can lead to settlement. Mediation offers participants the
opportunity to vent their anger and dissipate that charge. Then rational negotiations
can get back on track.

The mediator’s job is to manage the environment so that participants
feel free to vent; feel that they will be protected from excessive venting from the
other side; and feel confident that the mediator will be able to steer them back to
rational negotiations when that auspicious opportunity presents itself. In the hands
of a competent mediator, venting does eventually give way to more rational
negotiation; and settlement generally is not far behind.

When the venting starts to run its course and the mood of the mediation
begins to turn, even the most aggressive litigators will have to downshift the gears of
aggressive behavior in order to serve their clients’ interests — knowing they can
always shift back up if the need arises — always with the mediator’s assistance and
support, as needed. The best litigators will understand completely both when and
how to do so. Their clients will benefit greatly from the exhibition of this skill. All
this generally takes place over the course of but a single day. Client satisfaction
with this process — and with you — is likely to be high.

Mediation also provides aggressive litigators with a significant
advantage over what is generally called a “settlement conference.” The difference
is control. In mediation, litigators get more of it.

In a “settlement conference,” as progenited in the court system and as
now practiced chiefly by retired judicial officers, the goal is settlement above all
else. In its archetypical form, the settlement conference proceeds almost exclusively
through sequential private caucuses between the neutral and the respective sides.
The neutral’s chief job in each private caucus is to raise dissonance about that
party’s perception of the strengths of his or her legal positions. The increasingly-
chastened parties surrender their demands and offers accordingly. The neutral drags
the plaintiff’s demands down, and drags the defendant’s offers up, until there is a
deal. The side which the neutral perceives to be more malleable gets dragged
farther from its original position. The deal is the sine qua non of the neutral’s
success.

Many retired judicial officers are highly skilled in this model, and it has
its place, perhaps most especially in the court system. Through the three-strikes
initiative and otherwise, the people have instructed the court system to give criminal
matters the highest priority, to insure public safety. With every passing year, our
underfunded court system has less and less time, money, and even physical space,
for civil matters. If the court system does not dispose of at least as many civil
matters as it takes in, the burdens will crush it. As a matter of allocating scarce
resources, therefore, the court system rightly does all it can to prevent civil parties
from relying on the public fisc to finance a system to resolve their essentially private
conflicts. So arms are twisted, heads are banged and bones are jawed — sometimes
to an exquisitely extreme degree — to get a deal.

In a private mediation system, however, participants demand, and often
get, a somewhat different service. Private mediators are in business. Participants
(parties and lawyers) must feel satisfied, must want to come back, and must want to
refer their colleagues and friends. So it generally does not behoove private
mediators to go overboard on the muscle. It too often backfires. Participants who
are hammered into a grudging settlement often later express extreme dissatisfaction
with the process, and with the mediator. As time passes, many of these participants
come to report that the neutral forced them to compromise just to get the lawsuit
over with, and come to resent the neutral for having deprived them of control, of the
ability to say “no” and have that decision be respected. As the resentment grows,
the participants are less and less likely to be sources of repeat business or referrals.
And mediation is a business, too. So the deal is not all there is to it.

For a mediator’s practice to succeed, participants must leave the
process with the perception that it has been fair, non-coercive, and under their own
control. Although mediators do plenty, short of bald coercion, to help participants
reach their choices, most mediators encourage participants to choose their courses
of action based on their own analyses of the options open to them, rather than based
on abdication to the neutral. Participants who believe that their decisions are their
own are more likely to be pleased with the process, and the results. And pleased
participants are more likely to come back and to refer their friends. And that’s what
the mediator wants to happen. In order for that to happen, a well-considered “no”
must become a decision which is entitled to the mediator’s respect.

Often enough, the parties will get to “yes” under their own volition.
Even where the parties do not get to “yes” during the actual mediation, cases often
settle shortly thereafter, mediation having served as the catalyst. But either way,
when cases settle through decisions which are the participants’ own, those
participants’ satisfaction translates into increased mediation business.

Think of the power and control in the hands of the litigating lawyer!
You and your clients, not the neutral, determine the ultimate outcome, whether
resolution or impasse. If litigating lawyers believe that they best serve their clients
by using their talents to help control the outcomes of disputes, then mediation
provides you an unparalleled opportunity to furnish your clients with the benefits
that your education and training uniquely suit you to provide.

So mediation is not for sissies. Mediation is for litigators who are
well-prepared; who fully understand their cases and their clients; who have the skills
to work with their clients to reach the best possible outcomes; and who have the
courage to let the chips fall where they may.

                        author

Jeff Kichaven

Mr. Jeff Kichaven is one of California’s leading mediators of insurance coverage and bad faith cases. He practiced business litigation for over 15 years before he began his full-time mediation practice in 1996. Today, Mr. Kichaven mediates approximately 200 cases per year. Mr. Kichaven also has a distinguished record of… MORE >

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