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A Mediator's Pleas(e)

A Mediator's Pleas(e)

Source: Law.com
Date: February 5, 2015

Hon. Richard A. Levie (Ret.)

Resolution Centers


As counsel, you have represented clients in hundreds of mediations. You have taken courses in the art (it certainly is not science) of mediation. Perhaps you even have served as a mediator. In your role as an advocate, you know the importance of being able to think like your opponent and to anticipate the reaction, response, next reaction and response and so on. Applying a layperson’s understanding of physics – every action will have an opposite reaction (it may or may not be equal but there will be a reaction). A mediator is placed between the action and reaction – sometimes leading, sometimes following. By thinking about the physics of a mediation and your role in it, you have the ability to maximize the opportunity to use the mediator to assist in reaching a resolution. The key, however, is to understand (and anticipate) the mediator, as well as the other party in the process. Listed below are one mediator’s pleas(e) for counsel to most efficiently use the mediator and mediation to achieve a resolution. Pleas(e) #1: Consider the attitudinal setting of the mediation – confrontational versus conciliatory. Not- withstanding each party’s belief (at least as expressed to a client) that it has strong, winning arguments, the reality is that the other party also has arguments. Indeed, the opposing party likely has precisely the same view of the case. Because the opposing party probably has highly competent counsel and confidence in its position, the likelihood of a settlement-inducing response from the other party to table pounding and bombast is something less than zero. The reality is that a party almost never “caves” in response to a table pounding presentation. More likely, the presenting party will guarantee immediate resistance to settlement and engagement in re-evaluation of one’s positions and the process of mediation. While such resistance is not necessarily fatal to reaching a resolution, at a minimum it does prolong the mediation in terms of time and cost to the clients. Please appreciate the difference between a conciliatory attitude and the chance of conciliation being viewed as a lack of confidence and fear of going to trial most assuredly are in the less than zero category. If a client does not appreciate the attitudinal issues for mediation purposes, consider a pre-mediation phone call or meet- ing with the mediator. Let the mediator be the message carrier about the importance of attitude in mediation. One can be conciliatory in tone, word choice and subjects chosen for discussion in ways that do not suggest weakness. Pleas(e) – consider an even toned “matter of fact” presentation of facts and legal posi- tions. Pleas(e) be sensitive to the persons sitting across the table from the presenting party. If the alleged “wrongdoer” or the writer of the contract on which the dispute is based is sitting at the table, be sensitive to their presence and make remarks that are factual “if we need to go forward, it may/will be necessary to prove….” Accusatory statements have no place at a joint session if one wants to make the mediation as productive as possible in the shortest amount of time. Even in the absence of a sudden “you’re right” response, such a presentation initiates and fosters an attitude and environment for compromise. 1.800.352.JAMS | www.jamsadr.com This article was originally published by LAW.COM and is reprinted with their permission. A MediA tor’s PleAs(e) By Hon. Richard A. Levie (Ret.)A Mediator’s Pleas(e) | Page 2 Pleas(e) #2: Regardless of who initiates the call, engage the mediator in a private (attorney to media- tor) pre-mediation telephone to discuss the upcoming mediation. Educate the mediator not only on all formal and informal discussions of settlement between the parties/counsel to date, but on the known or suspect- ed “hot button” emotional issues on both sides of the case, including any personnel issues. For example, if the attorney through conversation or experience suspects opposing client has a “client control” issue, discuss this with the mediator. Doing so enables the mediator to better assess the important motivating factors of the parties and avoid unknowingly inflaming a sensitive relationship. Pleas(e) #3: Be creative. You know better than the mediator whether there are non-economic ways that may be related or unrelated to the underlying dispute that have potential use in fashioning a resolution. Consider an antitrust case between an international corporation and a domestic corporation that was set- tled by the sale of a company owned by one party to the other party in the suit where the company sold had no direct or indirect relationship to the dispute at issue. Pleas(e) #4: Use the mediator effectively. Assuming you have confidence and trust in your mediator, use the mediator to move the dispute toward resolution. Actively seek the mediator’s views. In a situation where you believe that your client needs to hear an analysis or evaluation from an objective third person, the open- ended (non leading) question to the mediator asking her/his thoughts on particular subjects can be particu- larly effective. As mediators we are here to help the parties. As counsel – please – use us effectively. Hon. Richard A. Levie (Ret.) is a full-time mediator, arbitrator, special master and case evaluator based in the Washington, DC, office of JAMS. Judge Levie has served as special master in many civil cases, includ- ing the federal tobacco lawsuit, five antitrust actions including the AT&T/T-Mobile and U.S. Airways/Ameri- can Airlines merger cases and a multi-billion-dollar qui tam False Claims Act case. He is a past president and current board member of ACAM. Judge Levie can be reached at rlevie@jamsadr.com.
As counsel, you have represented clients in hundreds
of mediations. You have taken courses in the art (it
certainly is not science) of mediation. Perhaps you
even have served as a mediator. In your role as an
advocate, you know the importance of being able
to think like your opponent and to anticipate the
reaction, response, next reaction and response and so
on. Applying a layperson's understanding of physics –
very action will have an opposite reaction (it may or
may not be equal but there will be a reaction).
A mediator is placed between the action and reaction –
sometimes leading, sometimes following. By thinking
about the physics of a mediation and your role in it,
you have the ability to maximize the opportunity to use
the mediator to assist in reaching a resolution. The
key, however, is to understand (and anticipate) the
mediator, as well as the other party in the process.
Listed below are one mediator's pleas(e) for counsel
to most efficiently use the mediator and mediation to
achieve a resolution.
Pleas(e) #1: Consider the attitudinal setting of the
mediation – confrontational versus conciliatory. Notwithstanding
each party's belief (at least as expressed
to a client) that it has strong, winning arguments,
the reality is that the other party also has arguments.
Indeed, the opposing party likely has precisely the
same view of the case.
Because the opposing party probably has highly
competent counsel and confidence in its position,
the likelihood of a settlement-inducing response from
the other party to table pounding and bombast is
something less than zero. The reality is that a party
almost never "caves" in response to a table pounding
presentation. More likely, the presenting party will
guarantee immediate resistance to settlement and
engagement in re-evaluation of one's positions and
the process of mediation. While such resistance is not
necessarily fatal to reaching a resolution, at a minimum
it does prolong the mediation in terms of time and cost
to the clients.
Please appreciate the difference between a conciliatory
attitude and the chance of conciliation being viewed
as a lack of confidence and fear of going to trial most
assuredly are in the less than zero category. If a client
does not appreciate the attitudinal issues for mediation
purposes, consider a pre-mediation phone call or meeting
with the mediator. Let the mediator be the message
carrier about the importance of attitude in mediation.
One can be conciliatory in tone, word choice and
subjects chosen for discussion in ways that do not
suggest weakness. Pleas(e) – consider an even toned
"matter of fact" presentation of facts and legal positions.
Pleas(e) be sensitive to the persons sitting across
the table from the presenting party. If the alleged
"wrongdoer" or the writer of the contract on which the
dispute is based is sitting at the table, be sensitive
to their presence and make remarks that are factual
"if we need to go forward, it may/will be necessary to
prove…." Accusatory statements have no place at a
joint session if one wants to make the mediation as
productive as possible in the shortest amount of time.
Even in the absence of a sudden "you're right" response,
such a presentation initiates and fosters an attitude and
environment for compromise.
1.800.352.JAMS | www.jamsadr.com
This article was originally published by LAW.COM
and is reprinted with their permission.
A Mediator's Pleas(e)
By Hon. Richard A. Levie (Ret.)
A Mediator's Pleas(e) | Page 2
Pleas(e) #2: Regardless of who initiates the call,
engage the mediator in a private (attorney to mediator)
pre-mediation telephone to discuss the upcoming
mediation. Educate the mediator not only on all formal
and informal discussions of settlement between the
parties/counsel to date, but on the known or suspected
"hot button" emotional issues on both sides of the
case, including any personnel issues. For example, if
the attorney through conversation or experience
suspects opposing client has a "client control" issue,
discuss this to the mediator. Doing so enables the
mediator to better assess the important motivating
factors of the parties and avoid unknowingly inflaming
a sensitive relationship.
Pleas(e) #3: Be creative. You know better than the
mediator whether there are non-economic ways that
may be related or unrelated to the underlying dispute
that have potential use in fashioning a resolution.
Consider an antitrust case between an international
corporation and a domestic corporation that was settled
by the sale of a company owned by one party to
the other party in the suit where the company sold had
no direct or indirect relationship to the dispute at issue.
Pleas(e) #4: Use the mediator effectively. Assuming
you have confidence and trust in your mediator, use
the mediator to move the dispute toward resolution.
Actively seek the mediator's views. In a situation where
you believe that your client needs to hear an analysis
or evaluation from an objective third person, the openended
(non leading) question to the mediator asking
her/his thoughts on particular subjects can be particularly
effective.
As mediators we are here to help the parties. As
counsel – please – use us effectively.
Hon. Richard A. Levie (Ret.) is a full-time mediator,
arbitrator, special master and case evaluator based in
the Washington, DC, office of JAMS. Judge Levie has
served as special master in many civil cases, including
the federal tobacco lawsuit, five antitrust actions
including the AT&T/T-Mobile and U.S. Airways/American
Airlines merger cases and a multi-billion-dollar qui
tam False Claims Act case. He is a past president and
current board member of ACAM. Judge Levie can be
reached at rlevie@jamsadr.com.