Mediation is a Team Sport
Too many mediators give themselves too much credit when cases they mediate settle. And too many lawyers put too much responsibility for the success on the mediator. But ultimately, it takes a team effort, and a vigorously shared sense of responsibility to maximize the likelihood that a mediation will be productive.
No one person is in a position to identify, or to understand how to manage or capitalize on all the factors, considerations, emotions and forces that can come into play during the mediation of a matter that is in litigation. The more people working to identify and understand the variables in play, the better the odds that unnecessarily lost opportunities will not derail the mediation.
The mediation process, viewed superficially, seems fairly straightforward. But it isn’t. Even its goal is often misidentified. The real goal isn’t simply to get the case settled – it’s to determine the best settlement terms the mediation is capable of generating.
The route to identifying the “best accessible terms,” however, often is both unclear and rich in hazards. The participants can reduce the risk of taking wrong turns and getting lost if all of them, not just the mediator, help decide which way to go when the group encounters forks in the road.
Among other things, this means that lawyers and litigants should not think only about how to impress or persuade or capture the mediator. Instead, it can be very important to think about the other participants in the process: what do they need, how can we try to address their interests or concerns, what would help opposing counsel gain greater trust from his client, what kinds of things could we do that would show the other side that we really have heard them, what can we do to increase our credibility with the other side, how is the other side likely to feel about or respond to different steps that we might take?
By asking these kinds of questions, the participants are attempting to improve or preserve the health of the process itself. They don’t want the process to break down on some artificial or avoidable grounds, e.g., because they take a tactical or behavioral risk that backfires, or because they are insensitive to something an opponent cares a lot about. And instead of relying completely on the mediator to keep the process on track, they explicitly discuss these kinds of questions with them (usually in private caucus), sharing their insights into other participants’ circumstances and personalities, so that, working with the mediator, they can take the steps that will enable them to use mediation to determine what their best alternative to trial really is.
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