It seems counter-intuitive, but the mediator who comes into the mediation early on to tell the parties who will win and who will lose is not doing evaluative mediation. That mediator is playing judge. More often than not, it’s an occupational hazard for experienced mediators who do it for a living.
Why does it happen? Unlike the parties, an experienced mediator who reads the Mediation Briefs and pleadings prepared by the lawyers knows how the movie will end, just not how long it may take.
But it helps no one for the mediator to call the game before the first pitch, and not before a number of innings. The problem occurs when a mediator forgets that the job is to be a facilitator and a deal-broker. The mediator needs to get the combatants to buy into the benefits of a range of settlements against the uncertainties of litigation. That requires a sincere effort by the mediator to establish trust and active listening.
In sales training, the mantra is that the customer buys the salesperson, not the product. The mediator is attempting to sell a settlement, which is low-hanging fruit since everyone would like to settle as long as it is on their terms. The real task is to get the parties to understand why the mediator’s evaluation of the strengths and weaknesses of the case is credible, thoughtful, and persuasive. That takes some time and effort.
In civil litigation the lawyers, more so than their clients, want evaluative mediation, where the mediator takes a more active role in selling the outcome. Sometimes the lawyer wants her or his client to hear the mediator’s take on the risks. A lawyer who keeps reminding the client about the risks is justifiably concerned with appearing to be afraid of the opposition. The mediator can play a useful role as a neutral who isn’t there to make decisions or impose solutions.
Simply having a mediator tell a party in a private caucus that they won’t win is not how to broker a deal, especially with a sophisticated corporate defendant. A defendant can say, with justification, that the plaintiff will fold when faced with the huge risk of paying the defendant’s costs after an unsuccessful outcome, even in cases where the plaintiff’s lawyer is working on a contingency fee arrangement. As a mediator, I ask a plaintiff if they are willing to bet their house on the outcome of the case.
Conversely, and in the other room, I ask the defendant if they are willing to gamble on the reputational harm and publicity that will come with losing. It’s not only money at stake in the
litigation. An experienced mediator knows that a corporate vice president is never willing to bet a career on a case that can go sideways.
Instead of delivering conclusions, the mediator establishes credibility by breaking the case down into its components. For example, saying “If Mr. X’s testimony is accepted by the Judge as a credible witness on your behalf, you stand a very good chance of winning. But anyone who thinks they can script what a courtroom witness will say has never done a trial”.
Or it might involve a whiteboard flow chart of all the dots that need to be connected to get to the finish line. And then a consideration of the weakest links. It’s never black and white because if you knew you will win, why would you settle?
The greatest benefit of mediation is the ability to help fashion creative solutions that the parties have not considered. Judges don’t have that opportunity. Court cases are up or down, win or lose. A boundary dispute might be settled with an agreement on a right-of-way, and a bitter shareholder dispute can be settled with a negotiated buy/sell. It’s all a worthy goal.
Mediator and Arbitrator