Those of you familiar with my other articles and general approach to mediation will recall a few recurring themes. Among these are: 1) remembering that your critical audience at the mediation is the other side, not the Mediator; 2) approach a mediation with empathy, and your approach should consider its impact on the other side; and 3) consider the benefits of the joint session and opening statement. An undercurrent in all of the above is that the advocate should approach mediation with the right skill set – a skill set that differs dramatically from trial advocacy.
Yet, the above admonitions are not meant to suggest that mediation is all about empathy. Quite the contrary. But there are ways to tactfully deliver arguments in mediation that might otherwise alienate an adversary and torpedo the mediation.
So, what is one to do when approaching a mediation, well-armed with arguments that go to the law and the facts that you feel compelled to raise? The answer is not to “cut loose,” “take no prisoners” and “let the chips fall where they may.” Here are some thoughts on the best ways to take strong positions in mediation that will advance, not deter, negotiations.
Share Your Written Submission
A shared submission to opposing counsel is a relatively safe way to asset strong and potentially divisive arguments. While a scorched-earth approach is seldom productive, confrontational arguments, like credibility and malingering, may be best addressed in written submissions that precede the mediation itself. Opposing counsel will read the submission and, as a lawyer, brings a thickened skin to attacks on his/her case. Nonetheless, even here, a softer approach may still be appropriate, applying some of the suggestions below.
Remember, you have chosen to mediate. This implies a willingness to compromise, and this should be implicit in your overall approach.
Make Your Arguments in Caucus
One of the Mediators’ jobs is to “massage the message.” In caucus with the Mediator, the gloves can come off, and a good Mediator will relay your arguments to the other side in such a way as to convey them effectively without alienating. Allow the Mediator to determine the timing and the content of the message, and even what mix of participants from the other room are the right recipients.
Parse Your Arguments in Terms of Risks, Proofs, and “Others”
Let’s assume you have agreed on a joint session and want to use your opening statement to convey the strengths of your case and the weaknesses of your adversary’s. Consider the following:
Open with a Concession
We are mediating to manage the risks and attain certainty of outcome and closure. Addressing these shared risks at the onset can soften the blow of your criticism of the other side’s case.
For example, a defendant’s preface might sound something like this: “We are here to try to settle this case and avoid the risks both sides face in litigation. As such, we recognize that we cannot predict the rulings of a court and jury, and we certainly cannot assume that everything will go as we hope it will. I would like to share some aspects of this case that I believe will be challenging to Plaintiff.”
“Deflect” to the Court and Fact Finder
Compare these two statements:
1. In the course of his deposition, Mr. Smith contradicted himself many times; he was not honest and is not credible. We don’t think a jury will believe him.
2. On any given day, a jury may dislike and discredit even a witness testifying truthfully and to the best of their ability. In the course of his deposition, Mr. Smith contradicted himself several times. At trial, we will be compelled to point out these discrepancies to the jury, and the jury may choose to discredit Mr. Smith on this basis.
It is a common scenario in an employment discrimination case for the Plaintiff to argue discrimination while the employer argues discharge “for cause.” This is often coupled with “hard feelings,” and irrespective of the merits of the claim, the Plaintiff genuinely feels he/she was treated badly.
Compare these two approaches:
3. As is clearly borne out by Ms. Jones’ performance reviews, she was underperforming at work. She was let go because she was a poor employee, not because of any discrimination.
4. We understand that Ms. Jones feels she was treated badly at ABC Corp, and ABC Corps is truly sorry for anything it could have done better that led to Ms. Jones feeling this way. ABC Corp. does not discriminate and has well-developed, and well-enforced, policies against discrimination. In order to prove discrimination, Plaintiff must prove certain elements to her cause of action and, meaning no disrespect, if she cannot “check all these boxes,” she cannot recover. We do not dispute that Ms. Jones is in a protected class, but she was not discharged for a discriminatory reason.
One of the defenses available to ABC Corp. is to show that it had legitimate and non-discriminatory reasons for letting Eva go [use of the first name may or may not be appropriate- that’s a judgment call]. And she was let go for performance reasons, as set out in her quarterly reviews, and not because of her [age, race, gender, etc.].
In each of the examples, in the second approach, the advocate is distancing herself from direct confrontation. The deeper meaning will not be lost on the lawyers in the room, but it falls well short of an “in your face” assault.
In our first example on credibility, the second approach begins with a fair statement applicable to both sides, saying, in effect, that anyone can have a bad day in front of a jury. Our advocate then transitions to the facts, noting that the witness did contradict himself when deposed. He then transitions further to trial and is “compelled” to point out these discrepancies. Finally, he deflects the role of discrediting to witness to the jury, rather than directly accusing the witness of being dishonest.
Compare this to the direct confrontation example, in which the lawyer directly states that “we” don’t think a jury will believe the witness. The witness is accused of outright dishonesty, and this is exacerbated by adding the lawyer’s own belief to the mix.
I would submit a direct/harder approach will quickly put the other side on the defensive and build a wall rather than a bridge. The second approach, even if not building a bridge, will not burn one. It points out, in a more measured manner, the weaknesses created by the witness’s contrasting testimony. Another implicit message, “settle today and avoid this!”
Example three is a direct slap in the face of the Plaintiff. “She was a lousy employee.” Employment cases often involve deep feelings, and broadcasting at the mediation that the discharged and, perhaps indignant, employee “had it coming” will not bode well for the outcome.
Contrast this to number four, in which the employer opens not with an attack but with something sounding like an apology – first acknowledging the hurt feelings and then regretting anything that “could have been done better.” The attorney then explains XYZ’s non-discriminatory policies and walks us through the basic elements of Plaintiff’s claim and the defenses available, including a non-discriminatory justification for the discharge. The lawyer has also subtly addressed the distinction between being treated badly and proving a claim of discrimination.
You will also note an important tactic in the softer responses is to “open with an olive branch.” This can be both disarming and effective; it lowers tensions before launching into the more adversarial aspects of an argument. The softer arguments also have a more objective ring to them, even though advancing subjective positions.
Obviously, all mediations and controversies are different, and there is no one-size-fits-all approach to mediation. Hopefully, these examples provide some food for thought when mapping out a mediation strategy. And, of course, part of the role of the mediator is to assist you in determining how a message is best sent. This can be addressed in caucus and even earlier in pre-mediation conferences. The Mediator’s job is to bring the parties together onto a common ground, and bouncing arguments off the mediator in private cannot backfire.
Parties commonly ask me in mediation if a certain argument will be productive. We flesh this out and make a decision. Using the Mediator as a barometer for the other room can provide valuable insights as to how an argument might be received and whether it is best expressed, delayed, or perhaps jettisoned entirely. Maybe an advocate needs to, at minimum, make this argument to the Mediator in the client’s presence and is relying on the mediator to “talk the client down” from an over-aggressive position? Providing guidance that keeps the mediation moving, with both parties moving closer together, is the essential role of the mediator. And employing his/her assistance in navigating these thorny issues is where the mediator can add some of the most value.
FPA – July 2022