THE MEDIATION MIRACLE: Getting the Most Out of Mediation
By David C. Nutter
“That was a miracle. I didn’t think we had a chance of settling this case.” So the satisfied lawyer confides to the mediator after his client has departed with a settlement leaving behind a contentious multi-year litigation. Now, I happen to believe in miracles. I’ve seen them. And whenever disputing parties voluntarily choose to put aside years of rancor and embrace peace, there is a touch of the Divine. But it is helpful to recognize that we, as lawyers and mediators, can take steps to improve the odds of a “mediation miracle.”
At the source of many conflicts is poor communication. And proper communication, not surprisingly, is the key to unraveling a knotty conflict. Indeed, mediation is all about communication: what to say, to whom, and when to say it. And, when and how to listen. As we listen to our opponents and consider their needs, new solutions materialize and the entire atmosphere of a conflict is transformed.
In a personal injury case, typically the only person who is unfamiliar with the mediation process is the plaintiff. Often the plaintiff is nervous and possibly fearful of the process. Also, many plaintiffs enter the mediation motivated by anger and a desire “to see justice done.” The now famous Miles Mediation client surveys revealed that 74.5 percent of plaintiffs enter the mediation with the belief that any settlement figure should be proportional to their sense of anger and need for justice. These emotions must be addressed for a mediation to be successful. Does money assuage these emotions? The money is a necessary ingredient to a mediated settlement, but it is often not sufficient alone to settle the case.
The best and simplest way for the mediator and the lawyers to address the emotions of fear, anger and the plaintiff’s sense of justice, is to let the client speak from the heart—and actually listen to them. So often this is the main thing a party really wants: the freedom to share their heart about a conflict and to be listened to–validated. By listening to the plaintiff, the other participants in the mediation are validating the plaintiff and communicating by their actions that the plaintiff is important. This is so critical to successful mediations. This exercise of validation alone often will lead to an unexpected settlement later in the day and will definitely cause defense dollars to travel farther. A party is much more likely to listen to a mediator or lawyer at the end of the day, when the mediator and lawyers listened to the party at the beginning of the day.
Now you may not actually respect all plaintiffs. But here I am not speaking of the emotion of respect. I am speaking of the discipline of respect. As a choice of your will you can choose to demonstrate respect and validate your opponent regardless of whether they deserve your respect and validation. The question is do you want to reach a favorable resolution at mediation or do you want to make sure your opponent knows what you really think about them? The first is a business decision, the latter is not.
My practice is to meet with each party separately at the outset of the mediation, before the joint opening caucus. One of my purposes is to validate the plaintiff and let them know I am listening to them. I use this time to meet the plaintiffs and hear their concerns in a safe, non-threatening setting. During the initial meeting, I will tell plaintiffs that in the upcoming opening statements, the defense is interested in hearing their side. Of course, it then becomes important for the defense to actually listen. The opening statement is a critical moment at the mediation. It is here that the defense attorney and insurance company claim representative have the opportunity to listen and be attentive to plaintiff and plaintiff’s counsel. At all costs the defense must avoid any actions that appear as if they are not listening or are not interested. Checking emails, clicking pens, and looking through papers are activities I have witnessed that send the wrong signal to plaintiffs. When this happens in opening statement, it is much more likely that the plaintiff a few hours later will “hold out on principle.” When the plaintiff has not been validated by the defense, the plaintiff feels like they have something to “prove” to the defense. That anger and sense of justice if not assuaged will later hinder an otherwise reasonable settlement.
Typically, the defense is viewing the case purely from a risk and monetary value perspective. These are important considerations for the plaintiff also and cannot be omitted. However, there are other significant factors at play with many injured plaintiffs, such as fear, anger and the need for justice, which if ignored will hinder settlement even though the money is within the range of risk.
Sensitivity to this issue of validation can also be crucial for the defense at the end of the mediation. Sometimes the difference between walking away with an impasse or a settlement when the gap has been narrowed, is the willingness on the part of the defense for the plaintiff to have the sense of having the last say, to let the mediation end by accepting a last proposal of the plaintiff. At this point, it is not the money. The parties are very close. It is the need for plaintiff validation.
At the same time, while it is vitally important to validate the plaintiff in opening statement and throughout the negotiations, it is equally important to begin to manage expectations. This is a delicate balance. If the defense only validates the plaintiff and does not counter in opening any of the plaintiff’s points, the plaintiff often mistakenly assumes that the defense has nothing to say in response. This fosters unrealistic expectations. A mediation miracle is much more likely if clients have realistic expectations about what will happen at the mediation.
As the mediator, I prepare the ground in advance. I tell the plaintiff that in opening statement they should expect to hear negative information about their case. I explain that the defense attorney is required by the State Bar Rules to be a zealous advocate for their client, and is duty bound to point out potential weaknesses in the plaintiff’s case. I also point out that it is a great benefit to the plaintiff for the defense to share their trial strategy with plaintiff in advance of trial. The plaintiff should count it a benefit, not an insult.
The best defense attorneys at mediation are then able to communicate very negative information to plaintiff in a respectful way that the plaintiff is able to hear without being threatened. The defense lawyer is not personally challenging the plaintiff, but doing what is required under the law. Defense attorneys who can walk the balance and validate the plaintiff and yet communicate the negative information necessary to manage expectations are the ones who are most successful at mediation.