The “Likeability Factor,” A Mediation Myth

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.