Published in the Daily Journal in October 2008
By Lee Jay Berman
By Lee Jay Berman
Many attendees at the 2006 Section of Dispute Resolution Conference in Atlanta had to look twice when they saw rock stars from the band KISS roaming the halls. It turned out to be Section members and conference faculty Lee Jay Berman, Jeff Kichaven, and Michelle Obradovic. Why would three self-respecting mediation professionals dress up as members of the rock band KISS? -- To make a serious point; help attendees think outside of the box, and give the message more staying power: Hundreds of mediators leave the practice every year because they fail to understand the realities of the commercial marketplace.
Mediation, as it is taught in most settings, does not resemble what civil litigators seek when hiring a mediator. Hard core litigators do not seek mediators with reputations for being sensitive, empathetic, active listeners who facilitate communication without affecting outcome. Mediators who stress these skills in their marketing to the litigation community and are fast convincing themselves that there is no career path in mediation, but the data doesn't support the conclusion.
Mediators who want to be facilitators and transformers have two choices: (1) find non-commercial outlets to practice their skills, such as workplace conflict in enlightened organizations and family law, or (2) they can get serious about figuring out what the civil litigation marketplace values.
If this sounds like a harsh approach, the people behind the make-up want mediators to know that it is. On purpose. The contemporary mediation community must either meet the needs of the litigation community, or be prepared for a massive exodus from the profession in the coming years.
For now, those wanting to practice facilitative mediation, help parties feel listened to, connect with the better part of the participants and appeal to the better part of the humanity in those with whom they are attempting to resolve conflict, need to learn some of the skills from the dark side, hereinafter known as Heavy Metal Mediation.
How to practice Heavy Metal Mediation.
This session unabashedly discussed the realities of mediation including taboo subjects such as manipulation, intimidation, mediator tactics, mediator ego, lack of real confidentiality, and how to void a mediator liability policy.
One example of the taboo issues these presenters discussed was the question about whether a mediator ascertains the parties' underlying interests simply to use them to manipulate the parties later in the negotiation. When a party tells the mediator in caucus that they really cannot fund a full-blown, scorched-earth litigation campaign, the mediator may use that information late in the day when that party is holding out, resisting movement toward settlement. Successful commercial mediators from the Dark Side will say (at 5:30pm), "Look, you told me this morning that you can't afford the litigation you're threatening, so it's time to get real about settlement."
While many self-respecting mediators may have just gasped at the thought of using information to encourage settlement, the ugly truth is that the litigator sitting next to that party wants the commercial mediator to say that to their client - in part because the litigator cannot.
The presenters told the attendees that those who are faint of heart should not pursue commercial mediation. One presenter stated that commercial mediation is for carnivores, not vegetarians. Commercial litigators want the mediator take control and play an active role in the mediation. Surveys and lawyer feedback have consistently shown that in most litigated cases, the attorney-advocates want mediators to roll up their sleeves, take the gloves off, and say it like it really is. Some litigators make fun of what they call "potted plant" mediators.
In today's world, this is the reality of the commercial marketplace, and the first step in successful business development requires defining one's marketplace. Litigators want die-hard closers. They are paying mediators thousands of dollars a day, and they expect results.
Some Concepts of Heavy Metal Mediation
Evaluative mediation is here to stay. Kichaven said that mediation often works best when lawyers want the mediators to help "break bad news" to their own clients about the downsides and weaknesses and risks of their own side of the case. Mediators uncomfortable with this kind of evaluation are unable to help the attorney. Kichaven emphasized that mediation rarely works when lawyers want the mediator to "make them understand just how weak their case is" where "them" means the other side.
Berman said that in his practice area "cost of litigation" analyses are dead and should be buried. While a very real economic component of any case, sophisticated litigants do not need mediators to hit them over the head with it. He said that a cost of litigation argument is a mediator's weakest tool and, if used at all, should be used in a way that suggests that the parties must have already considered this, but that it might bear mentioning.
Kichaven said that it is foolhardy not to consider the lawyers to be the mediator's "clients." He also cautioned that it is foolish to disagree with a lawyer regarding their evaluation of a case, emphasizing that they know and have analyzed their own case better than we know or have analyzed their case (or at least they THINK they have!). Berman says that the mediator knows the least about the case of anyone in the room - both at the start of the mediation, and at the conclusion. Some mediators might disagree with these statements, but sometimes mediators forget that they are only told what the parties want them to know, and that the idea of mediation advocacy to some is to "spin" the mediator. Kichaven reiterated that mediators will almost never persuade a client to believe anything different than their own lawyer has told them about the strengths and weaknesses of their case.
Obradovic talked about convening, saying that she uses confirmation letters and checklists mostly to ensure that counsel prepare for the mediation and to spur them into having preparatory conversations with their clients. Berman echoed that for him briefs serve the same primary purpose - to force the attorney to think about the strengths and weaknesses of their case and their settlement posture, and forward it to their clients to read.
Obradovic also touted preparation and working with counsel to set the mediation up for success. Where convening and pre-mediation are taught in most typical mediation trainings, Obradovic emphasized that most mediators miss important opportunities to discuss various process design options, such as the need for multiple sessions or whether to negotiate in phases such as classification of injuries, damages for each class and attorney's fees. Obradovic said that the mediator should continue to guide the parties in their preparations up until the mediation day. All three agreed that this is best practice, and that finding the time for preparation in a busy mediation calendar is the biggest challenge; however, litigators expect this level of service for the fee they are paying.
Berman asserted that it is the mediator's job to ensure that the right people, with the right authority are at the mediation. He said that the parties count on the mediator to do this as part of their convening role, and that to think otherwise and be "hands off" is naive.
Berman also claimed that, in truth, the mediator is the one responsible for impasse. He said that impasse was nothing more than poor planning by the mediator, and referenced his article titled, "Impasse is a Fallacy." He challenged every mediator in the room to take the responsibility for being the only professional in the room who sees both sides of the case, should understand each side's negotiation strategy, and should see early in the day if the negotiation is headed for an impasse and head it off before it happens, rather than letting it occur. He told the mediators present that it was their job to maintain a bird's eye view of the mediation and focus on the big picture, rather than allowing the parties and their counsel to steer their attention to minutia. He challenged mediators to stop having conversations and issue debates with lawyers that begin with phrases like, "Yeah, but..." and rather, take responsibility for moving the discussion toward, "What does this mean to us in the big picture of getting this case settled?"
Kichaven and guest presenter Betsy Thomas (from Complete Equity Markets) addressed a mediation's grand finale. They cautioned that many mediators, in trying to be helpful and demonstrate their value, will pick up the pen or sit at the computer to play scrivener to the parties' agreement (or worse yet, draft it themselves for the parties). They recommended that these mediators might want to read their malpractice policies closer, as they may be voiding their coverage by doing so. Kichaven emphasized that a skilled mediator can continue to facilitate the drafting without a pen in his or her hand.
Kichaven and Berman also discussed that while many mediators begin a mediation by promising confidentiality, each state is different, and what is often called confidentiality, is actually no more than inadmissibility. Citing California's strict confidentiality statutes, they pointed out that they work within the California Evidence Code and only address admissibility, not privacy or a cloak of silence. Most mediators can offer no protection that prevents the parties from going home and telling their neighbors or a newspaper reporter, so mediators should be cautious about over-promising with regard to confidentiality.
One last point was that all three presenters often hear from colleagues that they have been doing volunteer mediations for lawyers for years and have never been hired privately to mediate a case. The message here was that the answer often lies in the mirror. In many jurisdictions, mediators criticize the marketplace or the local court program. While these may be valid complaints in some areas, in the end, if some mediators are being hired privately after working in these programs and others are not, this difference is likely a reflection of the marketplace's response to what individual mediators bring to the table that others do not.