DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART V
December 18, 2012 § Leave a comment
This is Part V of the series on Mediation by Don Dornan. Jr., of Biloxi.
GETTING PARTIES TO SAY “YES”
Because the mediator is neutral and has no interest in the ultimate outcome of the case, he lacks the authority to force one party or the other to settle the case if it is not believed to be in that party’s best interests. Likewise, armtwisting, threats and intimidation by the mediator ring hollow because the mediator is without any adjudicatory authority over the case. He cannot admit or exclude evidence, compel discovery or grant summary judgment. Thus, it is the mediator’s effective use of the mediation process which most often brings the parties to agreement on terms which are mutually acceptable.
Some of the methods and techniques which have proven successful in changing attitudes and reassessing expectations:
Reversal of Roles – Sometimes the mediator will ask the lawyers to exchange roles in the case and make the other lawyer’s best argument. Follow up questions such as “If you were representing the other side, how would your evaluation change?” and “If you were representing the other side, how would you evaluate your witnesses?” can bring about a relaxation of the party’s viewpoint.
Correct Misunderstood Facts and Law – If a party’s evaluation of the case is clearly based on a misapprehension of a material fact or the applicable law, the mediator can often break a logjam by diplomatically clearing up the misperception in a balanced and inoffensive manner.
Best Case Scenario/Worse Case Scenario – Asking each side to articulate their best scenario and their worse case scenario often permits the litigants to see more clearly the wide range of potential outcomes by illustrating the best and worst that may happen if the mediation falls through. This approach can also add perspective to the other party’s last offer.
Take a Time Out – Sometimes having the parties take a break from mediation in the same room can break tension which builds up over a long day of negotiations. The mediator may encourage conversation on any topic other than the case. Likewise, taking a lunch or dinner break and reconvening often relaxes the participants and soothes emotions.
Confidential Disclosure of Bottom Line – If both parties will agree, this procedure can at least inform the mediator as to whether a gap between the respective negotiating positions can be closed. This approach normally should only be employed later in the negotiation process. With the agreement of both parties, each side confidentially discloses their bottom line settlement figure to the mediator. If the figures coincide, there is a settlement. If they overlap, the parties agree in advance that the case will be settled at the mid-point between the overlapping figures. If the figures do not coincide or overlap, they remain confidential and the parties remain at their prior negotiating positions. The obvious drawbacks to this approach are that it depends on the willingness of the parties to divulge their true bottom line figures to the mediator and on the integrity of the mediator in maintaining the confidentiality of this information.
Bracketing – Impasse can sometimes be broken through the technique of bracketing. In this approach, a party may send a message to the other side through the mediator such as, “We will move to $X if you will move to $Y.” There are risks in employing this technique. For example, if the opponent’s response is simply to decline the invitation, without more, the offering party has revealed a willingness to move to $X and gained neither a counteroffer nor any meaningful information about the opponent’s next move. Parties rarely agree to the conditions of a bracketed offer. Usually, the best that can be hoped for is a response such as, “We won’t move to $X, but if you will move to $A, we will come to $B.”
Attrition – The mediation process can continue for long hours and sometimes this promotes resolution. The parties can be vulnerable to mental and emotional fatigue. Ocasionally, a party’s strategy may simply be to wear down the other side’s resolve. Although the fatigue factor can sometimes result in agreement, the mediator must be careful to insure that any final agreement is entered into with the full knowledge and understanding of the parties.