The Legal Intelligencer - Approaching Mediation From Another Vantage Point

January 13, 2017

Approaching Mediation from Another Vantage Point

By Francine Friedman Griesing, Esq. and Emily Griesing

Very few neutrals, arbitrators or mediators, however astute, can truly appreciate what a party is feeling in the midst of mediation or court mandated settlement conference. Similarly, even the most committed and well-meaning counsel may not be able to provide the level of emotional support or guidance a client needs in this setting as they have never walked in the client's shoes. Until you have been a party to a dispute yourself, not merely an advocate or a neutral, you may imagine, but have not experienced, the feelings of fear, anger, disappointment, frustration and confusion that parties bring to the alternate dispute resolution process. Having experienced all of the roles at play - arbitrator, mediator, defense counsel, plaintiff's counsel and finally and most critically, as a party myself, one can understand and appreciate more directly the stress parties face in this process. If you have been a party, you are more acutely aware of how trying the experience can be and thus understand the value of considering that perspective. Bearing this in mind, neutrals and counsel can take some straightforward steps to make the experience more tolerable for all parties, increasing the chances of reaching a successful and time-efficient resolution.

Much like a patient in an operating room, the mediation process is largely foreign to clients and can often be deeply personal in nature. Therefore, it is the responsibility of the neutral and counsel to walk the clients through what the experience is going to entail and to provide moral support throughout the experience. To put parties at ease, counsel should prepare clients well before the mediation has begun. Counsel should make sure the client understands that the process is confidential and statements made in that setting cannot be used elsewhere. Parties should also understand that the neutral cannot dictate or force a resolution and that the mediator is not obligated to assure that a resolution is fair or approximates what a court might do. In fact, one of the benefits of mediation or a settlement conference is that a resolution can include elements that are outside of the types of relief a court can order. The provisions that can be crafted here can be more inventive than merely awarding damages or directing a party to perform a contract obligation. Furthermore, mediators have different styles and use several techniques to encourage the parties to reach a resolution. Some mediators are more collaborative while others come across like school yard bullies. Since clients will not mesh with every style of mediator, counsel should be well acquainted with the mediator's practices and share that with the client before they are in the mediation or settlement conference. A client who is unprepared for a mediator using strong arm tactics may be caught off guard which can jeopardize the likelihood of a resolution.

The preparation process should also include a discussion of the terms that the client requires in their settlement agreement. These may include the obvious, such as payment of set amount of damages under a specified time frame, but may also include confidentiality, non-disparagement, positive references or others items of value besides money. By considering the desired settlement terms beforehand, counsel knows what to advocate for during the proceedings and is thus able to prepare a draft settlement agreement before the mediation begins. Having a draft settlement agreement at the ready on a laptop during the mediation enables counsel to finalize an agreement in real time, without risking any backtracking or misunderstanding regarding the terms in the days following. This step prevents additional time and effort from being spent by all parties to renegotiate terms after the mediation is complete. It can also assure that important terms are not overlooked in the heat of the mediation because counsel and clients have considered the essential deal terms upfront and without the pressure of the controlled setting.

Once properly prepared for the mediation, there are several important factors for counsel and neutrals to consider from the clients' point of view while the proceeding is underway. As clients are often emotionally charged coming into mediation, it is critical for the neutral and respective counsel to be sensitive to this and do their best to mitigate it. A thoughtful consideration that a neutral can take to prevent early escalation from either side is to steer clear of initial joint sessions of the parties. Many times a joint session can set the parties backward because the personal animus escalates when parties are confronted with their adversaries or counsel make heated presentations that offend or incite. To avoid a David and Goliath-esque situation, particularly in cases where an individual is in mediation with a large entity, the mediator can skip a joint session upfront and keep parties separate to maintain a sense of security and objectivity. This gesture leaves parties more likely to begin the negotiation process with an open mind, rather than provoking further conflict due to face to face contact.

Further, by parties electing to partake in mediation, neutrals should acknowledge that clients want to be part of the negotiation process. Rather than being sidelined while counsel and neutral run the show, mediation is an opportunity for each party's voice to be heard. Mediators should give clients the space to share their story and perspective - an opportunity to vent is often just as important to a client as reaching a settlement. In tandem with allowing clients to air their grievances is making sure the parties are involved in important conversations. Rather than delegating clients to the corner while the mediator speaks with the counsel in private, important considerations should include the client to prevent them from feeling alienated or suspicious.

Lastly, with a huge focus on strategy and decisiveness for a resolution, the more obvious client needs can be overlooked. With mediation proceedings taking hours if not days, it is a draining process for clients. There is a tendency among some meditators to wear down the parties to expedite a resolution, however, this does not ensure a conclusion post mediation as either party may re-evaluate and seek to retract the deal under less stressful circumstances. Rather, ensuring that the participants are comfortable is a small step a mediator can take with a large impact. Some of the most effective mediators are known for their hospitality -- offering refreshments, food and short breaks throughout the day to keep parties comfortable and engaged in the process. When accompanying a client to a court ordered settlement conference where refreshments are generally not available, counsel can make a long day more palatable by bringing along provisions such as water bottles and snacks. That may seem beyond the purview of counsel, but clients who are veterans of lengthy settlement processes are grateful to have support beyond legal advice.

When counsel and neutrals take into account the parties' vulnerability in the mediation process and attend to the breadth of their needs, not just the legal issues, it heightens their receptivity to reaching an agreement. In my experience, parties that are prepared for these dynamics and feel their counsel and the neutral are sensitive to them are more inclined to reach a resolution. If you are looking for additional guidance on how to prepare your client and yourself for mediation, one of the best resources I have found is Mediation Practice Guide - A Handbook for Resolving Business Disputes (Second Edition), written by Bennett Picker, and published by the American Bar Association Section on Dispute Resolution.

Reprinted with permission from the January 17, 2017 issue of The Legal Intelligencer.