The Legal Intelligencer - Putting Yourself in the Party’s Shoes: How to Be an Effective Advocate in Mediation
Over 25 years ago, I attended a course on negotiating settlements and mediation in which advocates and neutrals shared their perspectives on how to reach a resolution in high-stakes disputes. The presenters shared a wealth of advice, but the advice from two particular speakers still stands out. The first came from the Judge Sandra Newman, former Pennsylvania Supreme Court justice, who at the time was a preeminent domestic relations lawyer. Newman shared that when she was trying to settle a marital dispute fraught with emotion, she would invite everyone to her office for bagels and lox. She found that by providing a nurturing setting, the parties were better able to put aside their anger and frustration and make peace while “breaking bread.” The second speaker I remember is David L. Cohen, U.S. Ambassador to Canada, who at the time was chief of staff to then-Philadelphia Mayor Edward G. Rendell. Cohen shared that when he was trying to persuade an adverse party to accede to the city’s position or to convince adverse stakeholders to reach an accord in a politically charged situation, he strived to grasp the other side’s position and reach a deal that everyone could live with long term. He remarked that if he banged heads and forced people to agree under duress, the deal would not likely hold up over time.
What Newman and Cohen had in common was an understanding that disputing parties need to feel respected and not be bulldozed into accepting terms they later regret. These experts appreciated that for a resolution to endure, the parties had to agree voluntarily, which was more likely in a comfortable setting when the participants walked away feeling they had gotten value in exchange for whatever they forfeited. Several other panelists in that program emphasized the parties need to be prepared substantively on what to expect from the process. Many noted that it was essential to let the parties speak for themselves, not merely through counsel, so that they feel they had been heard.
In the past four decades, I participated in commercial, employment and regulatory disputes, as an advocate and as a neutral. However, nothing prepared me for how the parties feel until I was a party myself in high stakes matters. I appreciated the advice shared by Newman, Cohen and others so many years earlier. Parties who agree to mediate or are compelled to participate by a judicial officer should expect certain basic things from their counsel and the neutral entrusted to navigate the parties to common ground. Unfortunately, I am often disappointed by how advocates and mediators do not meet these threshold expectations.
What do clients have a right to expect from their counsel and the neutral when mediating a dispute? Here are the minimum elements that counsel and mediators should assure are met.
- Preparation by counsel on what to expect from the process and the mediator.
I have served as a court-appointed mediator, where parties appear without any preparation. Anxious, angry, and often grudgingly present, they are not necessarily in a mindset to take advantage of the opportunity to manage their risk and end their pain by reaching an amicable resolution. As a result, the mediator faces greater hurdles to achieving a solution that could be in everyone’s best interests. To avoid this problem, the mediator should instruct counsel to prepare clients in advance to enhance the likelihood of making real progress. A thoughtful mediator will ask counsel for hidden obstacles that have prevented resolution so far. But there is a limit to what the mediator can accomplish before coming face-to-face with the parties. The laboring oar for preparing parties to engage meaningfully in the negotiation process must be borne by counsel. Lawyers should devote sufficient time with clients explaining how mediation works, reviewing the legal and factual issues in the case and evaluating the potential terms of a settlement. Clients and counsel should come prepared with a draft agreement they can revise and be committed to finalizing a deal at the mediation.
- A mediator with the patience to listen to the parties.
As counsel and a client in mediation, I cannot over-emphasize the importance of selecting a mediator whose style will mesh with the client in a particular matter. I have been in mediations where the neutral has either been far too combative or far too weak. In either extreme, the case did not resolve. I have observed mediators yelling, swearing, throwing things and banging the table to bully participants to bend to the mediator’s will. On the other end of the continuum, I have been disappointed when experienced neutrals have given up early without persevering to navigate around a perceived impasse. I have also appeared before mediators who have only spoken with counsel and have not addressed the parties directly. That is a missed opportunity to gain valuable insight on how best to move an intransigent party closer to accord. With individual parties it is especially important to select a neutral who is patient yet firm and is willing to allow a party to vent without becoming frustrated. If a mediator does not let a party get things off their chest, pent-up emotions will likely impede progress. By allowing parties to share their perspective, without the artful packaging of counsel, the mediator can build rapport and identify barriers to settlement. Ideally, parties deserve a mediator who is willing to listen respectfully to them and put in the effort to assess their concerns and objectives.
- A mediator who looks beyond the numbers for a creative solution.
Part of the hard work for an effective mediator is to expand the consideration to be exchanged rather than to focus narrowly on dollars and cents—the latest demand and the last offer. That myopic view can undermine a mediation. Money is usually an essential element of settling any dispute, but other considerations can materially impact the outcome. Timing of payment may be important to one side or the other for tax reasons, cash flow or other factors. Similarly, maintaining a continuing business relationship, avoiding disparagement, or preserving confidentiality are valuable currency in a mediation. Sometimes a straightforward apology can bridge a gap that seemed too great to close. I find it troubling when a mediator jumps right to the numbers, assuming other terms are akin to the tail wagging the dog. For parties who feel there is a principle at stake or are highly emotional about the dispute, compensation may be a salve, but it may not be enough. This, again, is a reason why mediators should listen to the stakeholders and not communicate principally through counsel.
- A comfortable environment with nourishment and comfort items.
As Newman realized, an ideal setting for negotiating a settlement is one in which the parties are comfortable and nurtured. I have participated in mediations where the neutral offers refreshments, a pleasant breakout room, and access to reading material. Those simple comforts can make a long stressful day more bearable and place the decision-makers in a better mindset to reach an agreement. Unfortunately, however, I have been disappointed by mediators failing to create a hospitable setting. I represented a client in a contentious case that needed to resolve. The parties enlisted an experienced neutral. Despite the firm’s luxurious offices, during the course of a 14-plus hour mediation, the participants suffered unnecessary discomfort. We were ensconced in windowless, interior offices, were sent out to get lunch and snacks, had to scrounge for water and coffee, and suffered through lack of ventilation when the air conditioning turned off at 5. Fortunately, as counsel, I bring supplies—water, snacks, chargers and magazines for my clients to make the lengthy process more tolerable, but on this day, my cache eventually ran out. The opposing side did not even have the provisions our team brought. Worn down by exhaustion, hunger and heat, the parties finally capitulated and penned a deal just before midnight. But it was not a great surprise when both sides wanted to back out a few days later as they were not clear-headed after being cooped up without natural light or sustenance. Ideally, the mediator as host should provide a desirable arrangement to minimize the discomfort in trying to settle a dispute. Counsel can reduce the stress by coming prepared with some essentials to keep clients more comfortable and better able to reach a deal they will be prepared to honor.
In any mediation, the parties are looking to counsel and the mediator to set the tone. Better preparation, careful listening and focusing on the stakeholders, can make the process less painful and the result more palatable for our clients.
Reprinted with permission from the January 3, 2023 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.