MEDIATION: WHAT’S HAPPENING IN THE OTHER ROOM
By Gregory J. Parent, Team Leader
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
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.
“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
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
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
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,
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.
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.]