Money May Be The End Result, But Should Not Be The Conversation Starter
Matt Thiry, Mediator & Arbitrator
Money is often the essential element to a mediated resolution. Without downplaying the importance of money, starting off the mediation conversation with it as the primary focus risks souring the process. How then can litigators balance a money-dominated process to address their client’s monetary needs without impeding the opportunity to settle?
This can be achieved by allowing clients to speak freely in caucus and listening to the nuances buried in those conversations.
It has been said many times that, if successful, mediation will be a client’s “day in court.” As such, mediation is the forum where clients have an opportunity to explain the case from the clients’ perspectives. Mediation allows for the expression of overall interests, thoughts, concerns, and emotions surrounding the dispute. Focusing the conversation on the pinnacle issue of money too early risks cutting off the client from truly being heard. In an effort to hasten the negotiation process, litigators often move quickly beyond the backstory to summarize the facts and legal posture, and the client’s perspective gets too little attention. Although many clients will not vocalize it, when this happens, the underlying frustrations of the dispute fail to be addressed. Although it may seem that allowing clients to speak openly will cause the mediation process to take longer, doing so may actually speed up the process and lead to better results.
Many litigators are well-aware of the facts and law applicable to their client’s disputes. In addition, litigators enter mediation with a pre-conceived idea as to what would be an acceptable mediated result. In many instances, the familiarity with the mediation process causes litigators to take control of the early conversation in caucus to lay out their early demands and the support for those demands. While there is certainly an appropriate time for this, doing so too soon is often a missed opportunity. Allowing the client to express his or her take on the situation, whether legally significant or not, assists in building rapport between the client and the mediator, the client and the process, and the mediator and the litigator. It allows everyone to understand that the mediator is listening to the client’s real concerns and not merely looking for the next in a series of offers to walk down the hall to present to the other side. Moreover, it reassures the client that litigation counsel is mindful of the client’s underlying concerns, even if all those concerns may not otherwise fit within the confines of litigation. Allowing clients to speak directly to the mediator provides clients the opportunity to be an active participant in the mediation process, as opposed to an observer of negotiations.
Clients speaking openly in caucus about the underlying issues motivating the dispute provides a greater context from which a resolution can be crafted. The underlying emotions, including, frustration, anger, bruised ego, etc. may not provide materials to make or break a motion for summary judgment, but they may be very relevant to a negotiated settlement.
In mediation, being heard and understood are important aspects of being able to craft and reach a resolution.
The client is ultimately in control of the mediation process, and that is not a bad thing. Allowing clients to actively participate is difficult for litigators.
By nature, litigators are skilled at controlling the flow of information and the presentation of the case. While allowing clients to speak in caucus requires loosening of the litigator’s natural control, the client saying something in the confidence of mediation is not going to hurt the case, but it could help settle it. Moreover, what is said in caucus remains confidential unless permission is provided to share it. Another advantage to allowing your client to speak in caucus is that the litigator is provided another opportunity to assess the client’s strengths and weaknesses in discussing the case. This can be a helpful exercise in and of itself. In other words, caucus is a setting to allow information to flow without fear of it being used to harm the client’s case.
After the parties have each had an opportunity to explain their respective perspectives on the case, the litigators and mediator are armed with additional information. The more information available, the more options available. Litigators, like mediators, need to be able to use the skill of active listening during mediation. Turning into an active listener is not an easy task. Advocates are often calculating how the last phrase spoken helps or harms their legal argument, how to counter the position being stated, and how he or she can best frame litigation issues in the event settlement is not achieved at mediation. Listening allows the process to reveal opportunities.
Mediation advocacy is not the same as litigation advocacy. This does not require litigation counsel to take a back seat at mediation. Instead, the client and the litigator should be active participants. Start the mediation as an active listener, as opposed to stating argument and posturing. You may already know everything that your client ultimately states; however, the opportunity for your client to speak engages the client in the process and assures that the client’s concerns are heard and will be addressed. Clients already familiar with the advocacy skills of their litigation counsel. There are ample opportunities in the mediation context to reassure your client that you are ready and able to take the case to trial. Preparing clients to be active participants and letting clients know they will have an opportunity to explain the case from their perspective often leads to opportunities for resolution that would not otherwise exist. Letting the client know in advance of the differences between litigation advocacy and mediation advocacy allows litigators to properly prepare clients and stages the environment of mediation in such a way that gives resolution its best chance of success. Again, while money will likely be the driving force for resolution, allow your client to be heard and set the stage for the best chance at a successful mediation.
Matt Thiry, Esq. is a mediator and arbitrator in Atlanta. He specializes business, fiduciary, real estate and probate. To schedule a mediation or arbitration with Matt, please call 678-320-9118 or visit his online calendar.