MEDIATION: WHAT’S HAPPENING IN THE OTHER ROOM

By Gregory J. Parent, Team Leader

Introduction

Mediation has arrived as an accepted medium for getting cases resolved, both pre-

suit and at every stage in the litigation leading up to and including the weekend before a

trial is scheduled to begin. In the last decade, mediation has exploded in popularity and

attorneys on both sides have embraced its effectiveness. While they may not always

agree on a case’s value, opposing attorneys almost always agree on exhausting settlement

negotiations at mediation in an effort to minimize risk, save litigation expenses, and

expedite resolution of the case before spending countless hours prepping for trial on cases

that should be settled.

Except for the first and second year attorneys still learning their craft, most

defense attorneys have been to more mediations than they can count on their fingers and

toes. It certainly isn’t uncommon for more experienced defense attorneys to attend a few

dozen mediations every year. Even the most experienced of defense attorneys, however,

only know HALF of the story, because they have never sat through a mediation in the

plaintiff’s room.

Preparation for mediation by the parties may be based on any number of factors.

Depending on the whether a case is being mediated pre-suit, early in the discovery

process, or on the eve of trial, the participants may have varied styles and goals in their

preparations for a mediation. For the mediator, however, the disciplined preparation for

mediation is almost always the same. The flow of a garden-variety mediation may vary a

little from one mediator to another, however, their individual styles will almost always

follow a familiar pattern. That being said, it’s not necessarily a formula or a rigid

structure, but there is definitely a method to the madness that mediators employ when

trying to help you settle cases while they are away in the other room.

Establishing Rapport

“Rapport” can be developed in any number of ways. While the following is not an

exhaustive list, these are five steps the mediator should consider which can prove to be

invaluable in starting the mediation off on the right foot. (1) Introduce yourself to the

plaintiff; (2) welcome them to their environment for the day; (3) determine whether they

have ever been in a lawsuit or mediation before; (4) try to discern whether the plaintiff’s

attorney has control of his clients; and (5) get a thumbnail summary of the case facts and issues.

Introduction and Welcome to the Plaintiff

The calling card of every full-time mediator is an ability to forge bonds with

anyone. It’s been said that good mediators are part salesman, part coach, part teacher, and

part psychiatrist. Mediators are usually dynamic, out-going personalities with a

seemingly innate ability to make people feel comfortable. Mediators must also be humble

enough to open doors for customers, get coffee, and help customers carry their lunch

plates to their individual mediation rooms.

If you think about it, although the attorneys and adjusters understand how cordial

and un-confrontational mediation can be, it’s brand new to the plaintiff. Setting aside

those few career plaintiffs who make a career out of trying to “game” the system, most

plaintiffs at mediation are first timers. And they are nervous, anxious, or downright

petrified about the process. Often times a warm welcome and introduction by the

mediator is all that is needed to break the ice and make a plaintiff feel comfortable and at ease.

Help Define The Plaintiff’s Environment

Much like a cruise director or a concierge at a fancy hotel, it’s the mediator’s job

to help define the plaintiff’s experience at a mediation. Coupled with the introduction is a

mini-tour of the facilities or specific directions on where to find things such as the

restroom facilities. In other words, a mediator’s first job is often showing a timid plaintiff

how to use a Flavia coffee machine or where to find Diet Cokes in the fridge. A good

rule of thumb to gauge a first time plaintiff’s nerves is whether you see food and coffee in

front of them in their room before the mediator arrives. If not, you can bet a mediator will

escort them to the kitchen so that the plaintiff can avail themselves of the breakfast

spread in the kitchen. Coffee and food are familiar and help to get plaintiffs acclimated

to the new surroundings. Because no one has an appetite when they are nervous.

If the plaintiff has come with a relative or friend who they directed to sit on the

couches in front of the TV, mediators may often invite them back into the room. Your

mediator is trying to determine whether the friends or family numbers are like a comfort

blanket. If so, we want them in the room to help reassure the plaintiff.

Our secondary goal with inviting them into the room is to have all of the

influential people in the room at the same time, so that we can address them together with

plaintiff’s counsel, so that they do not undermine the attorney or the process. Nothing is

more detrimental to a mediation than the armchair quarterback who poo-poo’s a whole

day’s worth of mediation progress, without ever having participated in any of the

negotiations.

Gauging the Plaintiff’s Prior Litigation History

The mediator wants to know the sophistication level of the parties and counsel

with whom he or she is working that day. Usually it’s a simple question: “Have you ever

been in a lawsuit or a mediation before?” Overwhelmingly the response is a resounding,

“No.” Occasionally, however, someone has gone through a divorce mediation. The

mediator may, at his or her discretion, use that opportunity to contrast the difference in

personal injury or business litigation disputes and family law mediation. Regardless, it’s

important to understand the plaintiff’s litigation experience and mediation background

prior to the opening session, so that the opening remarks can be tailored accordingly.

Determining Whether the Attorney Has Control

Where there has been no prior communication with plaintiff’s counsel, the initial

meeting is also an opportunity to establish arguably the most important factor in a

mediation—whether the attorney has control over his or her client. Before the mediator

asks the million dollar question, however, he may try to build the plaintiff’s confidence in

their attorney, by sharing an old war story if he and the attorney are friends. Or, in cases

where the mediation is a first introduction for both the attorney and the mediator, a more

direct “out of ear shot” question is in order: “Are your clients listening to you?”

What Are We Here For Today?

Secondary to understanding the interplay between plaintiff and his or her counsel,

is an initial determination as to the merits of the claim. If a mediator hasn’t already

worked with the attorney or gotten any advance materials to review, they may use this

time to listen to the details of the case. While no firm judgments can be made only

hearing one side of the story, it’s possible to develop a sense for whether the case has

some potential to get resolved based on the plaintiff’s evaluation of the case.

What You See In The Defense Room Before The Opening

Chances are, you’ve worked with your mediator before. Your initial meeting is

almost like two old friends catching up. After hearing about the kids, the latest vacation,

or how the ‘Dawgs did in their last game, the mediator wants to know your perception of

the other room. And, as Paul Harvey used to say, we want to hear “the rest of the story.”

But that much you’ve already seen.

Building Credibility During the Joint Session

For those of you who mediate regularly, you can probably recite the lion’s share

of your regular mediator’s opening remarks. You are familiar with their explanations,

their anecdotes, and their preferred metaphors used in welcoming the parties to the

mediation. There is, however, a specific purpose to our opening. A mediator wants to

establish credibility with the plaintiff and EACH and EVERY other person in that room

with their opening remarks. While the styles may vary, every mediator wants to (1) talk

about his qualifications and experience and background, (2) introduce the parties and

their respective roles; (3) explain the process of mediation and a general timeline or

detailing of what to expect throughout the day; (4) listen with a nuanced ear and observe

every minute detail of the interactions of everyone in the room.

Mediator’s Back Story

Most attorneys have either worked with the mediator before or have researched

their mediator online and/or through other colleagues. Even though you know them, it’s

important for the mediator to still say it in the opening in front of everyone. If there are

subtle changes in the “script” of the mediator’s background, it’s likely done to touch

upon an earlier connection made with the plaintiff. It’s also important to show that there

is one voice in a position to help “be in charge” of the proceedings so that there is a

perception of order and fairness. If nothing else, the mediator needs to firmly establish his

or her neutrality.

Introduction of the Parties and their Roles

Beyond just knowing everyone’s name and title, it’s sometimes helpful if your

mediator briefly defines everyone’s “role” within that opening session. It can be as

simple as establishing that the defense attorney and the adjuster are going to be working

together to evaluate the plaintiff’s case. But it can also be more inclusive and identify the

goals of the parties. The mediator may help diffuse the emotional aspects of a mediation

by stating that the defense is there to make a business decision and that it’s not a personal

attack against the plaintiff. Mediators vary in their approach, but it often helps take the

sting and anger out of the room when the roles of the defense are explained in the

opening session by the neutral. When a plaintiff hears from an objective neutral that the

defense has no “ax to grind” with the plaintiff, but rather that they are just doing their

jobs, it can help set a collaborative tone from the start.

Explanation of the Mediation Process

A mediator should explain in general terms about what to expect. Whether they

describe the individual caucuses or just explain that the mediation process takes time, an

explanation—however long or brief—helps set expectations. Generally speaking, the

mediator should also discuss that lunch will be served and snacks will later be provided.

In addition, the mediator should advise that he or she will provide updates as to how the

proceedings are developing to give everyone a sense of perspective on how the day is

progressing.

Mediator Should Shut Up Listen and Observe

Mediators should be good listeners and excellent observers. During the mediation,

it’s common for mediators to take some notes, but generally speaking, they are watching

the interplay between everyone. Watching the reactions of the attorneys when

information is relayed. Watching the interplay between the plaintiff and their own

attorney as well as the defense team. It is not uncommon for a mediator to observe

reactions or body language that they can later use as leverage when meeting with the

parties separately. In other words, it’s like playing poker—everyone has a “tell”.

Another subtle job of an effective mediator is determining the best avenue or

manner in which each person prefers to receive information, so that the mediator’s input

can be best communicated. Some folks want to here recommendations. Some folks want

to here options. Some folks don’t want to hear anything. It’s the mediator’s job to know

their audience.

Focusing The Plaintiff on Transparency of the Mediation Process

Generally speaking, the first caucus with the plaintiff is always very important for

purposes of further explaining the mediation process. Regardless of where the

negotiations are and whose move it may be next, most mediators choose to meet with the

plaintiff first. The mediator uses this time to address the information shared by the

defense attorney and the adjuster in the opening remarks, especially where legal issues

like liability and causation have been raised. A mediator should not shy away from

delivering sobering news about what was learned in the opening session—especially if it

was tense or heated.

Additionally, during the opening caucus, it’s important to dispel and thwart any

attempts by the plaintiff or counsel to demonize or otherwise paint the defense team in a

negative light. Mediators do not meddle in historic or long-running petty personality

conflicts between defense counsel and plaintiff’s counsel. It is important, however, for

the mediator to distinguish the actions of a defense attorney simply doing his or her job

from what is perceived by the plaintiff to be a personal attack.

Sometimes this is as simple as saying, “The defense attorney didn’t call you a

‘liar’, what they said and what they meant is that the large gaps in your treatment history

raise ‘red flags’ and make them question whether your pain and injuries were still

related to the subject accident and not some other intervening new incident.” The

mediator is not choosing sides in a situation like this, rather, they are cutting through the

rhetoric and any disinformation and trying to focus the plaintiff on the kernels of truth

and objective relevant [or admissible] evidence.

Another thing that mediators explain to plaintiffs in the opening caucus is that

their goal is to bring their attorney information. Mediators often assume the role of the

sailor in the “Crow’s Nest” of an old ship. A mediator is usually a former practicing

attorney who knows the perils and pitfalls in a case when they see them. They can often

avoid the angst of having to deliver bad news by establishing with a plaintiff that they

should want to hear EVERYTHING a mediator can learn about their case—good, bad,

and ugly.

Rather than being tasked with charting a course of action based on the

information, a mediator can simply ask the plaintiff’s attorney, “What do you want to

do?” Such an open-ended question is both a request and an invitation, if asked, to discuss

the merits of the information. Regardless of which way the attorney chooses to go, the

plaintiff gets to see the transparency of the information gathering and how it is shared.

In other words, even if they don’t like what they hear, plaintiffs can feel confident

that their mediator is not employing any tricks or tolerating any gamesmanship

shenanigans between the parties in the process. Some plaintiffs are very skeptical of

everyone in a mediation and the transparency helps placate their paranoia.

Managing Expectations and Determining Motivations

It helps to have good bedside manner when you deliver the sobering news, but

most mediators have already paved the way for talking about the bad news long before it

has to ultimately be delivered. There are any number of ways to forecast the ballpark

where the settlement is likely going to end from far away.

Some mediators portend for the plaintiff where the defense may be going [when

armed with specific information from the defense room]. Some mediators postulate as

though they were “thinking out loud” as to where the settlement numbers might be

trending based on how the offers and demands are tracking. Others seek to use brackets

to help define the ballpark, mathematically speaking.

While it is important and relevant to help guide the plaintiff’s expectations as to

where the negotiations are heading, the mediator needs to also arm the defense with

information as to the plaintiff’s motivations. Many plaintiffs are truly only there the

money. Occasionally, however, some folks just want to be heard. Their motivations are

neither about the money nor going to trial. They simply want to be heard, appreciated,

validated, and acknowledged. Often an apology from the defense team goes a long way in

helping resolve those emotional issues for plaintiffs with those sincere concerns.

When non-monetary issues are the primary motivator, it is incumbent for the

mediator to listen carefully for alternative ways to address the issues standing in the way

of resolving a case. For some commercial clients, gift cards to the business, coupled with

settlement dollars, can help to resolve a case. Other times, the plaintiff may just need to

time to acclimate to their new reality, time to feel like they are being heard, and time to

accept what is being offered.

In all situations where emotions are governing the negotiations more than math

and simple monetary exchanges, the mediator should be providing the defense with a

summary of the “temperature” of the room, so the defense can adjust their expectations

and prepare to let the process play out.

Closing The Deal

After a long day of negotiating, especially where the discussions have been tense

and emotional, but largely productive, it is of paramount importance that you have a

mediator with a sense, a knack, and desire for closing the deal. That mediator has to have

both a long and short memory and be stubborn and wholly unafraid to challenge every

person in both rooms.

A long memory serves the mediator well in trying to close the deal on a difficult

mediation, because the one piece of information needed to persuade one room or the

other may have been something seemingly insignificant that the mediator observed or

heard in the opening session. Much like a closing argument, the last couple of exchanges

in a negotiation need to include summaries of the entire day’s proceedings in the hopes

that one room or the other may budge.

When in the defense room, you’ll see the mediator play the “devil’s advocate”

role and be intentionally obtuse to test your position. Once you’ve heard, evaluated, and

made a final decision, however, the mediator knows that the final moves, if any, are

coming from the plaintiff’s room. What you don’t see is that the mediator is doing just as

much, if not more “devil’s advocacy” in the plaintiff’s room.

A particularly effective tool in helping to show the plaintiff perspective is taking

the difference in the respective positions, however large that number may be, and

deconstructing it to show the plaintiff the “net” amount he or she will recover. Mediators

will show how that number, minus attorney’s fees, minus the likely incurred expenses,

isn’t as big a difference as they thought. Or, the mediator can talk about risk avoidance

and how the money on the table is likely better than their risk of possibly doing worse at

trial. Regardless of the method, the goal is the same and the effort from the mediator is crucial.

Conclusion

Contrary to what you believe, mediators do not control the outcomes of

mediations. We control the process and the flow of information. No mediator has ever

decided a case at mediation. Rather, we control the other aspects of the mediation process

and try to encourage both parties to play fairly.

Sometimes that means we have to serve as translators to help the different sides

see the common elements of the case the same way. Other times, mediators have to dispel

misconceptions or erroneously based perceptions that the parties may harbor. While some

emotions are expected and a natural part of the mediation process, foolish and prideful

emotions are ineffective at mediation. They need to be identified and eradicated with the

help of a strong mediator.

When the mediator is not in your room, he or she is trying their best to build a

bridge between your room and the plaintiff’s room by fostering effective communication

and using their credibility, establishing rapport, or delivering straight talk in a manner

than can best be heard and understood by the plaintiff. All of our efforts are targeted with

the goal of building a mutually beneficial foundation for the parties to explore and

exhaust settlement discussions.

And that’s what the mediator is doing when not in your room.

[Unless he or she is in the restroom.]