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What Style o f Mediation Do You Need? by Richard A. Kaplan

I f you need a m ediator, you probably know there a re reputable organizations that p rom ote p anels of lawyers an d retired judges who offer m ediation services an d there is literature available to help you narrow your search. In Utah, for example, you will find m ediator biographies (self-interest alert, including m ine) on utiilradrsenices.com o r law firm websites, and of course you can w ork with the American Arbitration Association o r other organizations depending on the subject matter. As for literature, there is a "checklist'' available with thirteen separate criteria to consider; Negotiating and Settling Tort Cases, § 6.11 (updated 2009), and there are m any p apers with the title “Selecting a M ediator" o r w ords to that effect. See, e.g., Weinstein & Chao, Choosing a Mediator, 5 Bus. & Com . Litig. Fe d . Courts § 51.35 (4th ed).

As I see it, the criteria an d suggestions in the literature boil down to a few key questions: What do you need most from the m ediator? Who has that p articu lar capability? Will that person be acceptable to the parties and opposing counsel?

Deciding what you need from a m ediator obviously requires both an accurate assessm ent of the case and a good understanding of the participants an d the p rocess. Determ ining which m ediators provide what you need in those respects will not likely be possible based on a typical m ediator biography alone. Gaining acceptance of the m ediator you select may d epend on how you play it.

SCENARIO ONE:

Strong Case, Form idable Adversary, Zero Progress

Let’s say you rep resen t the plaintiff in w hat you see as a potential $ 5 - 6 million com m ercial lawsuit. Discovery is com plete, you’ve developed good facts. On balance, the law favors your client. You co nsid er yourself a good lawyer and an able negotiator. Still you’ve gotten now here in settlem ent discussions. Your adversary has a lot m o re experience than you do, an d a rich resum e of accom plishm ents at trial. The obstacle to serio us negotiations an d settlem ent may have som ething to do with your adversary's self-confidence, ego, o r both. While you co nsid er yourself "up an d com ing,” opposing counsel is a long-tim e pillar of the b ar and knows it. Most importantly, he is highly regarded as a trial lawyer p e r se, not for settling early, cheaply, o r even at all.

You dem anded $4.5 million an d accom panied that dem and with a w ritten analysis of why you will win an d why your dam ages greatly exceed your dem and. He d o e sn ’t seem to u nd erstand your argum ents, or, if h e does, h e clearly dism isses them. He’s at zero. The only p ro gress you've m ade is that he has agreed to voluntary m ediation. How will you ap pro ach the pro blem of choosing a mediator?

It s not ju s t the stre ng th s and w e a kn e sse s of the case

It’s the process and the p sycho d yna m ics you m ust

contend w ith .

I've h eard it said, not entirely in jest, that there a re essentially three kinds of people: people who make things happen; people who watch things happen; and people who wonder what happened. At first blush, people who “m ak e” things h appen may sound som ehow su p erio r to people who “w atch” tilings happen. Not so fast. That’s not true at all, particularly as it relates to m ediation. And, as for you an d me, if truth be told, we m ust admit w e’ve found ourselves w ondering w hat happened from time to time.

As it relates to m ediators, this simplistic classification of people is useful in beginning to consider what mediation style you want. All three describe not just people but skills, styles, and strategies. 1 w ant to explain the choices available to you without resorting to m ediation jargon, an d then to use the language of mediation to help you determ ine what type of m ediation style you w'ant for Scenario One. The discussion of types of m ediation skills, styles, an d strategies should have b ro ad enough applicability to help you decide what you need in oth er scenarios as well. I’ll p resent another, p erhap s m o re typical, scenario tow ard the end.

RICHARD A. KAPLAN is a shareholder at Anderson & Karrenberg. His practice focuses on complex civil litigation and mediation, as well as independent investigations and risk assessment at the outset o f commercial ligation.

willing to negotiate. They essentially “w atch” things happen. This is the style you’re looking for m ost of the time.

B a s i c m e d i a t i o n s t y l e s a n d t h e s t r a t e g i e s t h e y s u p p o r t .

The best m ediators, while open-m inded, are highly skilled at seeing areas of agreem ent o r m utual interest and even the b ro ad outlines of a deal before it happens o r w hile it develops. The focus h ere is on how they handle that knowledge.

Some of the m ost accom plished m ediators view a deal as the overriding goal of mediation, occasionally requiring abandoning the p rin ciple of neutrality in favor of raw truth. Always having the end gam e in m ind, they w ork h ard to get the parties to that point by design. They may push one side o r the other, o r both, gently an d forcefully at different times during the day. They try to “m a k e” things happen.

O ther highly skilled m ediators take a m uch m o re hands-off, d eliberate approach. They may nudge the p arties from time to time. But they derive the m ost satisfaction from watching the parties strike a bargain themselves. Such m ediators view neutrality d uring the p ro cess not just as ap pro priate but as fundam ental. They’ve w o rked h ard to develop that skill, to know w hen to talk, w hen n ot to, and when to stop. They know that ap p ro ach engenders trust and thus h as great value to parties

I doubt that many m ediators, if any, studiously practice “w ondering w hat h ap p en e d .” But it’s w orth thinking ab ou t this idea of “w o n d er” at a d eep e r level. Some m ediators a re simply b etter than o th ers at feeling an d expressing em pathy and appreciation. I ap preciate, and you probably do too, people who are easily able to attribute ideas to others, ra th e r than to themselves. That quality is especially im portant in m ediators. W hether you w ant to take the notion of three kinds of people furth er an d call the third category those who have the capacity to com m unicate “w o n d er” (like a p aren t encouraging a child) o r something else, the ability to attribute au thorship of ideas o r pro po sals to o th ers tends to m ake them feel like they’re contributing and taking “ow nership."

Some highly skilled m ediators a re flexible and able to use multiple strategies and skills successfully, along with dozens of tactics for working through im passe. They can plan an d intuit when and how to employ this, that, o r the o th er skill o r tactic in the co urse of a single day.

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M e d ia tio n s ty le s , s tra te g ie s , and v o c a b u la r y as a p p lie d to S c e n a r io One. Given the state of play in Scenario One, as plaintiff’s counsel you’re not ready for the subset of m ediation known as ‘ facilitation A facilitator’s greatest skill in m ediation is assisting the parties themselves in negotiating resolution. That m eans w orking with them patiently and supportively, usually observing ra th e r than talking as each side w orks through its own concerns. Excessive criticism, optimism, o r pessimism are studiously avoided, because the substance o r tone of such communications could be interpreted as favoring one side o r the other. To be sure, m ost facilitators will ask h ard questions o r m ake serious suggestions, even for a “c o rrectio n ” if a p ro p o sed move seem s way off base. But by and large a facilitator d o esn ’t try to influence the p ro cess o r direct it, because that com prom ises the ap pearance of neutrality. All m ediators, regardless of style, know that the m ost enduring settlem ents are the ones the parties negotiate themselves. All m ediators and m ost lawyers w h o ’ve used mediation know that facilitation is m ost likely to be effective when the gap to be bridged is relatively small.

Absent deux machina, a facilitator w on't help you in Scenario One b ecau se your adversary d o esn ’t w ant to be facilitated, and, in truth, you d o n ’t either. The gap couldn't be larger. The parties are simply n ot poised to strike a deal essentially on their own.

S u p p re s s th e "g o o d gu y" te m p ta tio n . Be wary that the m ediator (w hether o r not a facilitator) might appeal to you to be the “good guy." That is especially likely in Scenario One, since y our adversary w on't touch that role and som ething’s got to give. Reason doesn't always trum p em otion, m uch less always prevail.

Consider what opposing counsel might have to say on the morning of the mediation regardless of who the m ediator is: “It’s my position and I ’m sticking to it.” He knows from experience that despite the m ed iato r’s entreaties ("I n eed you to give me som ething to w ork with, anything p lease"), the m ediator may be wrong. T here’s potential success in standing pat, insisting till the while to the m ediator that you, his opponent, a re the one being unrealistic. Consider also that you may be the one the m ediator tests, not your adversary.

The temptation can be quite strong to show the mediator that you're in fact reason able by indicating you an d your client are flexible an d will in fact move in the face of a credible offer. Be aw are of that trap, know it when you see it, an d d on 't let it catch you.

D on't overplay any natural desire you may have to cooperate with the mediator, to have h e r like you. It may take very little to dem onstrate that you’re the reason able one in the room . If you show too much flexibility, particularly early on, you put your client at risk of being push ed tow ard a “split-the-baby” com prom ise you d on 't really want.

Be a w a r e th a t w e a k n e s s is sign a le d in u n ex p e cte d w a y s . Your adversary may not "know ” that you conveyed such flexibility' to the mediator. The m ediator c a n ’t tell him w ithout your consent and you obviously d o n ’t give it.

Still, you m ust figure that your adversary has an acute sense of w eakness. He will watch the m ediator and listen carefully to h er when she com es b ack from a caucus with the oth er side. Her body language, tone of voice, and delivery may suggest your weakness regardless of her best efforts not to. Opposing counsel will look beneath her efforts to generate movement, to see what’s really there. We’ve all h eard (an d all m ediators sometimes p ro po se o r use) h y p o th e tica l: “S u p p o se .. Or, “I ’m certainly not saying I can, but what if I can get him off of that num ber?” When opposing counsel h ears that early on, he h ears it the way he wants to: th e re ’s a lot of ro o m here. He'll be tem pted to let that dynamic play out in his favor.

Rem em ber that despite the “w in/w in” paradigm that dom inates cu rrent m ediation literature an d training, your adversary wants to “win" the old-fashioned way, and at every step along the way. Try to u nd erstand w hat he thinks w ould constitute a “win" in your case an d have that low-ball n u m b er in m ind as som ething you m ust avoid as you calibrate your moves. For him, “winning” in Scenario One probably d o esn ’t m ean paying zero o r anything close to that. If the fair value of settlem ent is something north of $4 million, he m ore likely thinks a “w in” would involve paying som ething south of $2 million, better yet $1.5 million.

So, assume you have given the m ediator the impression that you’re reason able and w hat you really want is a just a good settlement, som ew here in the middle. In that case the m ediator will alm ost certainly apply p re ssu re to move the parties, particularly your side, in that direction, consistent with the principle of neutrality. After all, you had said orally and in writing before the m ediation that you want a lot, but your dem eanor and choice of w ords now reveal that you’ll take not so much. With a strong sense of that in hand, the m ediator w on’t violate h e r duty of confidentiality o r any o th er p rinciple o r duty by helping you get there. In fact, that would be in keeping with the m ediator's job.

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So, what type of mediator do you need? I think Scenario One requires you to find a mediator who (1) has first-rate analytical skills and is highly likely to perceive the value of your case as you see it (that means you're right and she agrees); and (2) who will credibly and convincingly, perhaps brutally, convey that value to opposing counsel. In mediation jargon, that would entail “evaluative” mediation skills and perhaps “transformative” mediation skills. What “evaluative” normally means is a mediator who comes to his oi­ lier own conclusion about the value of the case and discusses it openly with both sides. All mediators surely offer the ability to estimate a range of settlement values for a case. Paradoxically though, few have the credibility to forecast the likely outcome at trial, particularly when one side is represented by a highly experienced trial lawyer and one is not. In this scenario, you need that credibility. While you’re in a separate room, you want the mediator to look opposing counsel in the eye and to say something like this: “This case has a lot of jury appeal - settlement value now in the mid-seven figures. I know you are a terrific trial lawyer, but you are likely to lose this one and in all events you have significant trial risk in this case. Here are all the reasons why that is so....”

(Note: When you ask for “evaluation” you obviously run the risk that the mediator doesn’t see things the way you do. Be prepared to hear that your valuation is grossly inflated and wildly off the mark. Understand that your selection of an evaluative mediator assumes that you are highly confident in your estimation of the case and able to defend it persuasively. If you can't, you need to be flexible enough to consider resetting your sights. If your views remain the same despite the mediator’s contradictory assessment, you need to be willing to walk.)

What “transformative” means is the ability to get the parties and their lawyers to understand each other’s perspectives and to gain respect for those opposing perspectives increasingly as the day goes on. Mutual understanding and respect drive compromises and deals.

Can you narrow this down to the right person(s) for the job? Who is the most likely to have these abilities? How about someone who already enjoys opposing counsel’s respect as a smart and accomplished trial lawyer and mediator in his or her own right? Tact, empathy, listening skills, and other such qualities are great, but they’re not the heart of what you need in this case. You haven't

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gotten your adversary to take you and your case seriously yet. You need help making that happen. You want a mediator who will know, and tell your adversary, that she understands his dismissiveness is an act, a tactic that he needs to leave behind now, and that it would serve his client's interests to get the case settled as early as possible.

(Note: The mediator knows opposing counsel knows what both sides’ strengths and weaknesses are. Good lawyers, like opposing counsel here, listen while pretending not to; they are always focused on their client’s needs, not them own. So, the task of cutting through the smokescreen is not nearly as difficult in mediation as your experience with the guy suggests, provided you find a mediator who can do it.)

It's not ju s t up to you. H ow do you get opposing

counsel to a c c e p t the m ediator?

If you believe you have identified just the right person, I know you realize you can’t dictate who the mediator will be. Your adversary doesn't have to agree to engage the mediator you propose and will usually have other ideas of his own. As we’ve posited, your adversary wants to “win,” and generally that means at every step along the way. Winning, for him, means selecting the mediator he wants, finding reasons to reject the people you propose, and working you over until you agree with his choice.

So, let me suggest that you surprise opposing counsel by making die choice he would have made, and he will be hard pressed to reject. Be bold. Find and propose the mediator/trial lawyer that he respects and uses more frequently than any other in town, whether he’s worked with or against her 100 times, and whether you’ve interacted with her yourself. If he asks, tell him you're aware of the prior relationship he has with the mediator and you're not concerned about it. You have an abiding conviction she'll be fair.

You should mean it when you tell him you’re not worried about bias. You should realize that, if anything, she's likely to bend over backwards to be fair to you and your client. Indeed, that concern may well occur to your adversary as he thinks through what you're doing. He may say no. If instead he hesitates, tell him you'll let her know you understand the full extent of their professional relationship and don’t want her to be concerned about it. You can’t force your adversary to agree, but it’s hard for him to reject someone he's used often himself. Regardless, you've now set the bar high and, if you don't settle on her, you'll agree on someone like her.

There are a host of reasons for selecting a mediator “as good as" opposing counsel, and here's the main one: In this case, the

mediator is not just evaluating your case on paper. She’s evaluating you, and your ability to persuade judge and jury. Who better to tell opposing counsel that you are “for retd" than someone he himself considers “for real” and thus already respects and listens to? Who better to persuade him that it would be wise for him to come down from Mount Olympus and negotiate with us mortals? That’s what he and his client need to hear from the mediator to get real themselves.

To be sure, you'll have to perform at your highest level to pull this off, but that should go without saying anyway.

THE MODERN CONCEPT OF MEDIATION ADVOCACY

In a leading article published almost twenty years ago in the Ohio State Journal on Dispute Resolution, James K.L. Lawrence advocates the concept of “Partnering with the Mediator." 15 Onto St . J. on D is p. Resol. 425 (2000). The heart of Lawrence’s argument is that mediations generally have the greatest chance of success when “the mediation advocate and her client [are] engaged with the mediator in the problem-solvingprocess: merely accepting or rejecting proposals from the mediator or the other side is insufficient 'engagement.'" James K.L. Lawrence, Mediation Advocacy: Partnering With the Mediator, 15:2 O hio St . J. on D is p. Resol. 425, at 426 (2000) (emphasis added).

While 1 strongly agree with Lawrence’s premise, I think the “partnership” characterization probably takes the idea of collaboration a bit too far. You represent your client. The mediator is not your “partner” in achieving your client's goals, and it’s dangerous to think about her that way. While sometimes it might make sense to be open and transparent at the very outset, most of the time you need to be more strategic in what you reveal, how much, and when. You want momentum to build, not wane, over the course of the day. Disclosing everything you have to say first thing in the morning may leave you with nothing left to say by noon. For example, you may think it will help the mediator to know your “walk away” number early in the process. You may think that will influence her to encourage your adversary to start well above your “walk away” number and to stay there throughout the process. On the contrary, that disclosure may be the first number the mediator actually considers and may therefore tend to anchor the mediator's thinking on the low side of the bargaining range. That early disclosure thus could lead her to work with the other side and you (despite the best of intentions and a conscious effort to maintain neutrality) to make moves toward your walk away number the rest of the day. This “anchor effect" is well documented in negotiation literature, and it could well work to your disadvantage during a mediation as well.

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On the other hand, assuming opposing counsel is reasonably competent (as you should), he already knows the weaknesses in your case. In most cases, opposing counsel already knows them. You will help the mediator and your client's bargaining position, at virtually no risk, by being forthright with the mediator about those weaknesses and by authorizing the mediator to tell the other side you know exactly what they are and why they don't concern you.

Assume you're about to give the mediator a demand or offer or counteroffer for her to present to the other side. It is best if the mediator can communicate at the same time that the dollar amount (or whatever you're proposing) takes those weaknesses into account. She should add that you have carefully considered them as well as the strengths of your case, and that this proposal gives those weaknesses what you consider fair weight and value. Give her your reasons too and let her pass those on at the same time.

Among the advantages of this approach, Lawrence points out, is that by allowing the mediator to put your weaknesses on the table, and to explain how you’ve taken them into account in deciding what to propose, you've actually strengthened your relative bargaining position. The weaknesses you expose now can’t bite you later. Sure, the mediator can come back to you with a proposal that says you didn't give those weaknesses enough value. But she cannot surprise you with the response that your proposal didn’t consider your weaknesses at all, and here they are, outlined with force by the other side. Oops.

SCENARIO TWO: A Simple Example of Interest-based Negotiations

Let's say you represent the plaintiff in a lawsuit in which he buys trucking services from the defendant to pick up merchandise from his customers' warehouses and to deliver it to its destination. Assume both sides have leverage. Yours is the warranties and reps in the contract. You could likely get summary judgment. Your opponent has a different kind of leverage. For one tiling, the judgment would be hard to collect because of defendant’s precarious financial situation. For another, your client needs defendant’s services because no one else in the area has ever provided them on a consistent or reliable basis. In these circumstances, your client and you may want a mediator ultimately to “facilitate” a business deal between the parties.

Suppose it's your first communication (a Mediation Brief) or first caucus with the mediator. You're not sure about the defendant’s cash situation so you probably want to take a shot at getting complete monetary relief. You need to make your point simple and compelling: the parties entered into a contract for trucking services and the

defendant expressly warranted that he would provide them. He didn’t. You had to refund $175,000 to your customers, and you can substantiate another $50,000 in compensable damages. The defendant took risks in the ordinary course of business, and the defendant needs to come to grips hilly with your damages.

Suppose though that the mediator comes to you with a small, unacceptable cash offer and nothing more, and makes clear she believes the money just isn't there. You now have a choice where to direct the negotiations. You can of course respond in kind or not at all. You have a strong summary judgment argument based on the warranties. You can walk.

On the other hand, you can introduce the concept of a negotiated resolution containing both monetary and non-monetary components. You could tell the mediator truthfully that you understand the dispute at a deeper level and want to share your insights with her. In mediation jargon, you propose to help her understand the underlying “interests” of the parties - their needs, their desires, fears, and uncertainties. You can help her work toward a “win/win” outcome.

You might explain that the parties have had a business and personal relationship for a decade that has been fractured by this dispute. Both sides are terribly frustrated. Your client knows that over the three-dav

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period when defendant breached, there was bad luck involved because most of his drivers called in with the flu. But still, you had warranties. Your adversary knows that you tried yourself to secure alternative transportation but couldn't get it. Your adversary says that’s his point too; he wasn’t able to get any other drivers either after trying to do that for hours and hours. Your client might stand firm on the warranties, or he might consider trying to salvage the relationship, provided the other part}' makes your client’s customers substantially whole. You understand that the defendant doesn’t have that much cash on hand, but your client might consider payment terms. That gives the mediator a smorgasbord of material to work with in developing potential compromises.

There’s no substitute for understanding your client’s underlying interests - business, personal, economic, and emotional - before the mediation. Think about how and when you might best weave his mixed feelings about a renewed business relationship into the conversation. You also want to research and think about your adversary’s likely needs and giveaways, as well as his BATNA. In the end, a reasonable resolution may be the one that satisfies as many of the parties' mutual interests as possible. The absence of any likelihood of re-establishing the business relationship takes a host of solutions off the table. The prospect of a renewed relationship is one a facilitator who understands business deals can work with skillfully.

Getting your client ready. Mediation requires not just your engagement but your client’s as well. You need to help your client get emotionally invested in the process and ready to work at it throughout the day. You and he share a common purpose. Among other reasons for your client to get engaged, he’s the one who is going to pay for it, including not just your fees but half the mediator’s. It is better if he appreciates that the odds of success improve with his full attention and engagement.

As to subjects to be discussed, most of them are probably obvious and there’s too much literature on preparation to cite here. Just a couple of points bear mention. You want to get your client ready for the mediation process (including what you know about the mediator and why you chose or agreed to hire her). Make sure you have agreement beforehand on what your goals are, what your strategy is for achieving them, and what happens if you don't. Focus on what your client needs, what he doesn't need, what is essential, and what he can give up to get something else. What is your client’s best alternative to a negotiated resolution (aka BATNA)? Quantify that as best you can. What is his w'alk away number? Explore with your client before the mediation what his real “interests” are: Is his objective to get as much money as he can? Or would he prefer a combination of money and, for example, assurances of priority service. Recognize that your client's "interests" include probing the needs, desires, and fears that motivate him. James K.L. Lawrence, Mediation Advocacy: Partnering With the Mediator, 15:2 Ohio St. J. on Disp. Resol. 425, at 426 (2000). Thus, in Scenario Two, for example, he's understandably fearful of keeping his relationship with the defendant, and fearful of losing it too, particularly if he can't find an alternative. He’s worried about keeping his own customers. He had thought before this mess that defendant valued him a valued customer. Now he thinks that wasn’t true at all. He doesn't want a new business deal with defendant unless the terms somehow reflect his valued status.

Finally, prepare your client for the experience - the slog - of mediation, which tends not to be fun for clients, especially if they don't feel heard and understood. This preparation requires orientation, including visualization. So talk with your client about what mediation is and the role of the mediator, what the floor plan will be, how you and your client will have privacy, whether or not the mediator is one who first brings the parties and lawyers together in the same room, what will happen if she does, how she might spend just a minute with you and your client to introduce herself and then spend an hour with the other side (or vice versa), how frustrating that can be, what to make and not make of that, where the negotiations stand before mediation, and how to understand and withstand the inevitable moments when he’ll want to leave or just throw the towel in.

Getting yourself ready. Indeed, you need to ready yourself for the same experiences throughout the day. How are you going to handle disappointments when the mediator comes back again and again with less than you expected? Will you allow a sigh of resignation? Or will you smile knowingly? Don’t discount the impact of your own body language. You need to maintain your energy and resolve. You need to recognize and avoid the “good guy" trap, especially at the end of the day when it becomes most alluring.

That means remaining vigilant and positive, and helping yourself to do that by keeping your purpose squarely in mind. Keep in mind that mediations can and do flip on a dime, sometimes in the last ten minutes. To be sure, that may not happen on any given day. Your best alternative at some point may be to exercise your greatest leverage, to walk. Meanwhile, your job throughout the day is to look for and work on developing ways to create opportunity for your client, or to recognize it when it comes knocking, unexpectedly or otherwise.

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