By Frederick Alimonti
My experience mediating cases as an advocate dates to around a decade before the beginning of my own mediation practice, and I would struggle to recall my first Mediation, [although I am pretty sure it was before the late and ever-winsome Judge Michael J. Donztin, at JAMs – an icon on the New York Mediation scene]. In 2011, I began mediating cases for the Southern District of New York. About five years later, I began taking on clients for private mediations. Throughout my tenure as a Mediator, advocating in mediations has continued to be a regular component of my law practice, which emphasizes aviation litigation. In this essay, I explore how mediating as an advocate and a neutral has influenced how I do both.
A Mediators Perspective on Mediation Advocacy
On its basic level, mediation affectively equates to negotiating with the assistance of a neutral. When all is said and done, a case will only settle in mediation by persuading your adversary to settle. The Mediator is not our target audience. He/she cannot order anyone to do anything. Both parties typically enter into a mediation with some hope of harnessing the Mediator’s powers of persuasion to their advantage.
When I have the privilege of sitting as Mediator, there have been times when the conduct of a particular advocate led me to think, “well, my job just got harder.” Not surprisingly, when I advocate in mediation, I try to put myself in the shoes of the Mediator and consider whether my conduct will be helpful to him/her. So here, in no particular order, are some thoughts on mediation advocacy from a Mediator’s perspective:
1. No Suprises. Presumably, you have had an opportunity to speak with the Mediator before the conference. This is the time to discuss issues that could adversely impact the mediation and avoid avoidable setbacks. These issues include “client control” problems, tensions with the adversary, and discovery disputes.
2. Avoid “Retrograde Movements”. While events arise that justify a revision to an offer or demand, such a change in position at mediation is pretty much by definition counterproductive. While circumstances, both factual (e.g., a worsened prognosis for a plaintiff) or procedural (e.g., a pending summary judgment motion) can affect the value of a claim at any time, taking money on or off the table is a setback at any time. Better to stick to your original number and simply advise that there is less room to maneuver given these developments than to change your settlement position outright.
3. Be Candid with the Mediator [at least in the caucus sessions]. As an advocate, I seldom reveal all to the Mediator and, as Mediator, I never expect a true bottom line. However, being candid in the “macro” sense can be enormously helpful. Remember, a good Mediator is always reading between the lines, and a simple recognition that certain aspects of your case are “challenging” or that your position is firm “unless/until” … signals flexibility with the Mediator and signals room to maneuver without “caving in.”
In a recent mediation, the advocates’ candor paid off big time. My usual mediation procedure is to request a shared mediation submission and an ex parte “settlement memorandum” from each side. The latter consists of settlement status, settlement positions, and anything else counsel prefers to share with only the Mediator. Both parties were in five figures in their “official” offers and demands. However, the ex parte submissions suggested a true separation of about $5,000.00. After a series of calls, and confirming some flexibility from both sides, we settled the case the day before we were set to mediate. In the occasional case in which we settle pre-mediation, sparing both parties and their clients the expense and potential business disruption of the mediation proceeding engendered some reciprocal flexibility.
4. Confer in Advance with the Mediator. I am a staunch proponent of pre-mediation teleconferences with counsel. Take full advantage of this opportunity, if offered. The potential subjects for these conferenceas are too numerous to list; they include a deeper insight into settlement posture, facilitating informal exchanges of information between parties, and being apprised of any challenges between the lawyers and clients.
5. Don’t Upset the Other Side. All emphasis on empathy and all precautions notwithstanding, counsel still needs to advocate at mediation, with the critical point being to advocate without alienating. This subject alone could occupy several papers, but one general method is to distance oneself from direct attacks on an adversary and his positions. For example, It is far less divisive to state that a jury may find a party’s testimony to be inconsistent than to accuse the same party of lying. See Confrontation in Mediation: Making Your Case in Mediation Without Alienating – Alimonti Mediation Services (aloadr.com)
As with so much else, the subject of how to raise delicate issues is well suited for pre-mediation caucuses with the Mediator, in which he/she can discuss this issue with both sides. The Mediator might also be in a position to share positions with both sides and take the sting out of potentially polarizing arguments. And if, in the course of the mediation itself, you have concerns on how to raise and address a sensitive issue, pull the Mediator aside for a caucus discussion on how to most effectively address this issue.
6. Use the Mediator to “Massage the Message”. Further to the preceding, the Mediator can address sensitive issues with the other side and present them effectively, albeit in a less divisive manner. It may be that some arguments are best raised with counsel only, who are thicker skinned and understand the role of an advocate. A good Mediator has a sense for the temperature of the proceedings and will have ways of addressing touchy issues with the other side that will not derail the mediation.
And Now Visa-Versa – What an Advocate Should Expect from a Mediator
1.Preparation. Nothing is more disappointing to me as an advocate than to arrive to an unprepared Mediator. In one instance, the Mediator went so far as to bemoan the absence of submissions we had in fact provided and then to blame a staff member for failing to review it.
2. Work Ethic. Both parties need to feel that the Mediator is fully engaged. Not all cases settle, but no party should ever leave the mediation feeling that the Mediator did not make every effort from submission review, to pre-mediation calls, through the mediation itself and, if necessary, continuing with post- mediation calls, to procure a settlement.
3. Creativity. A Mediator should have a deep toolbox. She/he must be ready to flex with the situation, mix and match the participants to make progress (e.g., a lawyers-only caucus). Constantly reading between the lines, the Mediator should be perpetually probing for paths to settlement. Are there non-monetary considerations that might mean a great deal to one party at little or no cost to the other? Might progress on these issue generate momentum for the “tough stuff”? Can brackets accelerate things? See Alimonti, Bracketing: Trying to Move the Mediation Goal Posts – Alimonti Mediation Services (aloadr.com)
4. Rapport Building. From the first pre-mediation call through potential post mediation deal-closing efforts, the Mediator has an opportunity to build trust and rapport. I cannot recall a single mediation in which the sit-down [or zoom-in] was the first time I had spoken to, at minimum, counsel, and frequently, clients and insurers. Although hard to pinhole substantively, establishing a foundation of comfort and communication can, in this Mediator’s opinion, constitute an invaluable intangible.
5. “Relentlessness”. Of the mediations I have handled in which one party was ready to leave and “throw in the towel,” more than half nonetheless settled when we pressed on. I reserve a full day for all my mediations and have never regretted the abundant time at my disposal when something of a pause and a pulse-taking were in order.
6. Active Participation. “If you’ve hired a Mediator, don’t settle for a calculator.” Before the swapping of offers and demands, I like a Mediator who discusses the good and the bad of the case and challenges me. I assume she is doing the same with other parties. If a Mediator can sensitize me to a weakness of my case in mediation, I appreciate her insights and the fact that a mediation is a relatively benign environment for this revelation. While I would prefer the setback beset my adversary, there is something to be said for embracing setbacks in mediation. They provide an opportunity to recalibrate expectations and close the gap toward settlement.
I hope these few points are helpful. Empathy is an essential skill in mediation. It will guide you in considering how to negotiate effectively with your adversary. We may be well served by applying that empathy to the Mediator as well. If our positions and arguments have the effect of making the Mediator’s job more challenging, they may be worthy of reconsideration. There is a lot to be said for the advocate in mediation facilitating the Facilitator.