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.
Practice Tip: When considering potential mediators to resolve your big case, make sure to assess whether a mediator’s settlement philosophy and approach are the best fit for your client and the adverse party given the dynamics, not just the subject matter.
Preparing Clients and Parties for ADR
I appeared as a party at mediation having countless mediations under my belt, but my counsel should have prepared me anyway. As an advocate for clients in settlement conferences and mediation, counsel should treat even sophisticated clients as incoming freshmen. Clients feel trepidation, hope, sadness, frustration, and fear, among many other emotions. They need to know the who, what, when, where, and how of the proceedings. Counsel should inform them who is attending, what to bring, when to arrive and how long to expect to remain, where the parties will be located, and how the process is likely to unfold. As part of that preparation, I encourage clients to dress professionally but comfortably, to bring an extra pair of shoes, a sweater or jacket, and something (book, knitting, crossword puzzles) they enjoy to pass the time while the mediator is working with the other side. Phone chargers and ear pods are also indispensable for keeping connected and occupied over a long and draining day.
I also check with clients on food preferences, bringing ample water, snacks, tissues, and pain reliever, while reminding them to bring enough of their regular medications. Some mediators arrange provisions, which I do when I am serving as a neutral. In one case in which I was a court-appointed settlement master, I had two business partners fighting it out in the conference room while their spouses were crying in my firm’s restrooms. Recognizing the escalating divide, I treated everyone to a pizza lunch break, which helped ease the tension and break the impasse. Hunger and thirst only make everyone crankier, so it’s best to avoid them and easy to do so. In contrast, I have been in many mediations with clients at large firms well past midnight where there is nothing available to eat or drink besides my own cache of snacks. No one wants to make a bad deal when they are not clear-headed due to lack of sustenance. My advice as a lawyer/neutral who has also been a party litigant in mediation may sound like a parent packing for a family trip to a strange place. But, for most people in conflict, that is just what mediation is—a strange place. Clients are wary as they participate in the mediation journey.
Practice Tip: When accompanying a client to mediation—with hopes of resolving a dispute that has led to lots of angst and sleepless nights—counsel should expect to prepare clients fully and nurture them through the process. Neutrals also play an important role in ensuring their accommodations offer a comfortable setting for parties to do the hard work ahead.
Setting the Ground Rules in Advance
Remote or in person? Confidential submissions or exchanged memos? Joint session or not? Agreed time schedule for mediation or open-ended? These are some of the issues counsel and mediator need to address in advance of mediation so clients are on the same page and know what to expect. It is also important for counsel to agree on whether any additional documents need to be disclosed or demands need to be shared in order for a meaningful settlement dialogue to occur. Clients are best able to engage in the process meaningfully if expectations are clear and agreements are met. The mediator plays a critical role in also setting parameters as to how they intend to conduct the session. Failure by a party to abide by those rules or the neutral to insist on adherence breeds distrust and can derail a mediation before it ever gains momentum.
Consider two situations where settlement was derailed because of mediator failure. In one, the mediator had an assistant run a conflict check but did not review the names of the parties personally until receiving written submissions on the eve of mediation. When the parties convened, the mediator first disclosed that he recognized one of the parties from his religious congregation but insisted that he could remain impartial. The other party was understandably distressed but anxious to settle and agreed to proceed. The distrust created by the mediator’s tardiness in disclosures caused the party to doubt the mediator’s input, and the process failed—a waste of time and money.
In another case, the parties agreed to mediate pre-suit, with one party committing to make specific sales records available in mediation so the opposing party could calculate potential damages. However, the party with the needed documents came to mediation empty-handed and with feeble excuses. Instead of standing firm on trying to enforce the non-producing party’s pre-mediation commitment, the mediator put more pressure on the other, non-breaching party to proceed without the information needed to assess settlement. Again, the mediation fell flat before it got started.
One option for counsel to minimize the risk of these antics is to negotiate up front that, in the event either party does not honor the terms of a mediation agreement in good faith, the breaching party will bear the full cost of mediator fees and attorney fees for the compliant party. Insisting on that may be an impediment to getting a party to mediate, but if both sides have a genuine interest in a productive process and a good-faith desire to settle, it is a reasonable option to raise and consider.
Practice Tip: Although counsel can diligently work to set ground rules, the mediator plays a key role in ensuring there are no conflicts, the terms of the mediation agreement are followed, and the parties commit to stay engaged until the mediator calls an impasse.
Reaching a Resolution That the Parties Will Honor
As soon as I schedule a mediation, I begin drafting the settlement agreement I would like to attain. In addition to pulling my own templates, I ask clients if they have form agreements or specific terms they expect. I collaborate with the client in advance so that we enter the mediation with a laptop loaded with a term sheet and draft agreement (with payment amounts and other variables to be added). We are ready to share it if a deal is struck. This way we are more likely not to overlook an important item in the heat of the moment or due to late-night exhaustion. My preference is to get the entire agreement done at the mediation table, but when that is not possible because a signatory is not present or some information must be added, we at least can sign a term sheet in the mediator’s presence. I also like to include a provision in the term sheet or the agreement that if a dispute later arises as to the terms, the parties return to the mediator to resolve those either by mediation or fiat, whichever the parties choose. When I serve as mediator, I encourage counsel to come prepared to sign an agreement so that the parties don’t lose a deal to buyer’s remorse or fight over drafting.
Practice Tip: The more final and binding the disposition at the mediation table, the more likely the deal will be honored without backpedaling.
Most parties don’t want to be in a legal fight, and even those of us paid to fight for others for our living appreciate that there are benefits to a negotiated resolution. Mediation is a valuable tool in the dispute resolution process when the stakeholders are prepared and motivated to make their best good-faith effort to put the battle behind them. When representing clients in this process, advocates can reduce stress and increase the likelihood of settlement when clients are well prepared and supported. Attending to your client’s personal comfort can make the difference between success and disappointment and in how your client views your service. As to mediators, you rely on recommendations and referrals. I have been most appreciative of neutrals who are patient but firm and thoughtful but attentive, and who also provide a setting in which my clients and I are as comfortable as possible in a tough situation. Often it’s the little things that people appreciate and remember. Weeks after I settled the dispute between those two business partners, each of their spouses (who had been crying in the restrooms) contacted me to thank me for finally settling this painful saga and especially for the patience, the tissues—and the pizza.
Practice Tip: As a lawyer, mediator, and former litigant, I urge you to remember that adding a human touch can make a difference. Good luck as you continue to advocate for your clients as counsel or facilitate for parties to resolve as a neutral.
©2022. Published in Alternative Dispute Resolution, Section of Litigation Newsletter, Summer 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.