“I will not divulge to the other side anything that you consider confidential without your permission.”

Such is the gravamen of a mediator’s promise to the disputants, and it underlies the very foundation of private negotiations.  Understandably, parties and their lawyers are obsessed with keeping anything they admit about the weakness of their case a secret.  In other words, a pox on the mediator who does not honor the dictum: “this is for your eyes and ears only! We’re only telling you this because it might help settle the case, even though it’s against our self-interest.”  The fear of telling too much is even greater if mediation fails, because the disclosing party may well want to take a completely opposite position in the re-activated litigation the following week, or month, or at trial.  Mediation ethics rules essentially prohibit anything disclosed during mediation from use in a subsequent proceeding but an admitted “bad fact” by the other side is hard to forget.

Pre-mediation statements prepared for the mediator - “for the mediator’s eyes only” - offer a concrete way for the parties to think through their respective cases, and for the mediator to begin mapping a plan for settlement.  It is extraordinarily difficult for advocates to concede weakness; observe the failed attempts by many lawyers to write a “non-adversarial” statement of the case in a summary judgment brief. But in virtually every mediation, especially those occurring before the complaint is filed or even drafted, the parties simply do not grasp how the other side is framing its case.  Particularly for individual plaintiffs who have little or no experience with litigation, the notion of how the other side could “sound good” to a jury is unfathomable.  

Thus, if a mediator wants to show part, or all, of a carefully constructed pre-mediation statement to the other side, it’s a good sign.  It means the argument put forth is at least somewhat, if not entirely, convincing. Likewise, by seeking permission to disclose a fact or argument previously kept hidden, the mediator is signaling that not only will the new disclosure aide possible settlement, but conversely, the “hidden” information will inevitably come out in the case anyway.  By being transparent (“candid”), a party gains the mediator’s trust and very possibly causes a little embarrassment for the obfuscating party and lawyer on the other side too.

“Do we see eye to eye on this matter?”

“Don’t you think you’ll just settle anyway?” For most litigants, the very mention of the word settlement (and its inevitability) in the middle of a hard-fought lawsuit evokes feelings of anger, frustration and confusion.  A tiny percentage of cases feature one side with significant motivation to settle early, fearing, for example, bad press, bad legal precedent, or the uncovering of more bad facts. But the bulk of civil lawsuits that laboriously wind through state or federal court feature parties wholly invested in the fight and in the outcome - an outcome where their side comes out on top.

To capitulate prematurely before having their “day in court,” which society has encouraged them to believe is the fair way, indeed, the time-honored way, to resolve a legal dispute, spells anathema to “must win” litigants.  Even as legal fees pile up, endless discovery saps resources, and initial or partial judicial rulings confuse, rather than elucidate what’s at stake, parties become more entrenched in the notion of winning and less inclined to settle.  

Enter the mediator, perhaps court-appointed, perhaps agreed-upon by counsel.  Hearing from the mediator that “ninety-eight percent of all cases settle before trial” or some equally dubious statistic does little to calm an angry party.  “Well, I’m in that 2% that’s going all the way,” is one common response from parties who feel, or in fact are, being forced to discuss settlement. At the heart of the dilemma is the unappealing vision that someone with no skin in the game is going to force them to give up on their desire to be made whole, on their need to get even, on their choice to fight back, to prove a point, to stand by their principles.  No, they will not give up and “just settle.”  

Missing from the thought process of a party who vows to never give up is the likelihood that his opponent doesn’t relish giving up either.  Neither side is willing to take on the label of “loser” from some entity or process other than the court. That’s the moment an effective mediator starts talking about what life after the lawsuit might look like, that is, if this dispute were gone from your life today, what would you gain?

While money remains the nexus of civil litigation - who owes, who pays, who suffers most - it is the emotional balance within each side and each person involved that is most crucial to resolution.  Doing away with the antiquated notion of “giving up” jump-starts the process.

After 35 years attending voluntary (“consensual”) private mediations and court-ordered settlement conferences, I thought I pretty much knew why certain mediators almost always settled the case, and mediocre mediators didn’t. The good ones were patient, creative, and knowledgeable about the law.  They also worked incredibly hard the day of the mediation and were able to maintain their energy and optimism even when the lawyers and their clients withered.

As an advocate, I spent a lot of time preparing my client to put his “best foot forward” with the mediator.  I wanted the mediator to like him, to trust him more than the party in the other room. In fact, I would get so obsessed with this “liking” part that I often hesitated letting my client go on too long ( telling our version of the facts), insisting that only one person could lead our side’s team. I wanted to be the one convincing the mediator, as if giving an opening statement to a jury.  I would do the talking, in a lawyer-to-lawyer manner, to the mediator. I was wrong. In order for the mediator to form a strong bond with a party, and eventually convince her to pay more or take less, the advocate has to get out of the way. While good mediators don’t hesitate to talk to lawyers one-on-one, outside of the parties’ earshot, it’s the clients who need to be in control.  When the mediator forms an impression about a party, it’s based on what is happening that day, the day of mediation.

It is not based on what law the party allegedly violated or wrong the party still suffers from. I now realize the mediator is not looking to be convinced of a party’s virtue, honesty, integrity or business acumen.  All the mediator cares about is whether the party is flexible and willing to remain steadfast through the long process of a negotiated settlement.