American Bar Association - In Their Shoes: How Advocates and Mediators Can Avoid Letting the Parties Down

Even with 40 years of litigation experience representing plaintiffs and defendants in complex cases and over 30 years as a neutral, when I participated in alternative dispute resolution (ADR) as a party myself, I felt unprepared. I was well acquainted with the process and represented by able counsel. But they lacked the personal experience from the party’s vantage point to prepare me for the rigors of the pursuit. Neither advocates nor mediators can truly understand the roller-coaster of emotions that a party runs through. Since then, I have applied the lessons learned to more effectively prepare and represent clients in ADR and to serve as a neutral mediator. This article discusses the most common mistakes counsel and neutrals make that leave the parties frustrated and disappointed, and shares effective strategies for taking better care of parties. These include the selection of the right neutral to earn the parties’ trust, preparation of parties to ensure their comfort, setting ground rules in advance, and reaching a resolution the parties can accept and honor.

Much of the hard work in reaching a negotiated resolution lies with counsel representing the parties. It is often difficult to transition from the role of advocate championing someone’s position as a hired gun to the role of trusted advisor persuading someone to see reason. But despite the tension between these roles, effective counsel for a party in a dispute needs to be able to make this transition adroitly. And given this inherent tension, counsel often enlist a neutral third party to bring a matter to closure before trial or arbitration. The challenge for counsel begins with assessing when to use an ADR process and whom to enlist to coax the parties to agreement. Until an effective neutral is engaged, the matter is in counsel’s hands. 

Selecting the Right Neutral the Parties Can Trust to Resolve the Dispute

How do most litigators select a neutral to help settle their toughest cases? Some rely on the court to serve in this role or to appoint a settlement master, leaving the decision to the judge rather than making a selection. This may be helpful when resources are limited and parties do not want to incur the cost of a paid impartial. Many of us turn instead to colleagues for recommendations, while others select from rosters furnished by third-party providers such as the American Arbitration Association or CPR International Institute for Conflict Prevention and Resolution, on whose panels I serve. In the universe of former judges, retired practitioners, and active experienced litigators, how do you identify the best match for you, your client, and the case at hand?

In my view, you start with style and temperament as threshold considerations, rather than focusing on substantive legal or industry experience. Not everyone would agree, but here is the reasoning behind my approach: In terms of deep ADR experience, a neutral will likely have encountered a wide array of disputes and have the aptitude to grasp the legal and factual issues. In most cases, this is true even if the case is not an area in which the neutral concentrated his or her practice. What is harder to master is the right balance of ferocity and compassion to develop rapport and guide recalcitrant parties to a common landing.

I share one example that illustrates the importance of making the right match for your client and opposing parties, which has parallels to the children’s story of Goldilocks and the Three Bears, in which Goldilocks happened upon the home of three bears: Papa, Mama, and Baby. She proceeded to test their porridge and beds. Papa’s were too hot or too uncomfortable. Mama’s were not quite right either, but the Baby Bear’s were just right. Goldilocks’s three-bears experience aptly describes the protracted mediation of a recent dispute between former business partners.

The dispute eventually was voluntarily resolved, but only after the parties had cycled through a series of mediators—all of high caliber, exemplary reputations, and substantive experience. Despite that, little progress was accomplished until the third and final neutral, who had the right balance of strength and understanding to reach a resolution. The first mediator, with decades of mediations under their belt, was particularly compassionate and a patient listener, but the parties perceived this neutral as weak, and they remained intractable, immune to the mediator’s entreaties. The second mediator, a retired judge who was accustomed to being in charge, dove right into discussing numbers, without much preamble. Neither side, each feeling strongly about the injustice of the dispute, had an opportunity to vent as the judge shut them down whenever they tried to discuss the rightness of their position. Despite the mediator’s raised voice, table pounding, and threats (strategies that I do not employ as a mediator), no meaningful progress was made. The parties left angry and frustrated at the mediator and their counsel for putting them in that setting. Finally, the third mediator, also a retired jurist, allowed the parties room to share their perspectives while maintaining a firm hand. Without yielding control, this mediator artfully persuaded them to see the other side’s perspective sufficiently to compromise.

It’s not that the first two mediators were not highly skilled; they were. However, in this dispute, the parties were not, for example, families hurt in a severe accident who might appreciate the understanding tenor of the first mediator’s approach. Nor were they two large corporations that might have preferred the tough approach of the “my-way-or-the-highway” judge. They were parties that had both suffered financial damages and personal loss as they had a long-standing relationship. The final mediator possessed the winning combination of style and temperament needed for these parties in this situation. Some mediators share their dispute resolution approach on their websites or in preliminary vetting discussions with counsel. In my view, the most reliable feedback comes from others who have mediated with that neutral.