Published in the "Mediation Strategies", A column for the Daily Journal, California's legal newspaper. December 2003
After fighting traffic, finding a parking space, and locating the mediator's suite, you hope your client is on time. You walk in to find opposing counsel with her client, already looking at home. You greet them politely, and search for your client. Finding no friendly faces, you use this opportunity to step out and call your client on his cell phone - and to regroup. Your client walks in as his voicemail answers, you chat for a minute, and the mediator comes to get you both to begin.
You are prepared, having rehearsed your opening statement in the car. You spoke with your client about what to expect and what to say, if asked by the mediator. Right when you are set to begin, the mediator launches into a monologue.
Why do mediators always do this? Why the need to give a speech? After hearing a hundred of them, why should lawyers pay attention?
If nothing else, it provides the opportunity to leaf through the file to locate some precise information to beef up your opening. Doing that might be a mistake, though. There is much that can be learned from a mediator's opening - about the process, about that mediator, and about how to maximize your outcome.
The mediator's introduction is an opportunity for astute counsel to glean important information about the mediator, his preferences, and his style. Listening closely to the words the mediator uses can offer insight into the mediator's hobbies, lifestyle, frame of reference on the case, and mediation philosophy.
Much rapport can be built and strategy formed by learning about the mediator during his introduction. Is the mediator married? Does the mediator choose legal-speak or lay terms? Is the mediator's eye contact directed toward you or your client? The latter may tell you who should to persuade the mediator about the case's validity. Is the mediator setting your expectations for compromise or collaboration? Does the mediator talk more about finding creative solutions, or settling the case?
Additionally, counsel can observe whether the mediator uses a "can't we all just get along?" style, or a more judicial or imperial style. All of this information gives counsel the ability to instantly adjust their style and be most effective with that mediator.
Advocates who provoke the other side will spend the day in a bullish tug-of-war. Remember, there is nobody in a mediation who has been empowered to take something forcibly from someone else and give it to you - you must get it from them voluntarily, if you are to get it at all.
Remember that clients are often distracted during the mediator's introduction. Clients who are new to the mediation process can be overwhelmed. They can also be preoccupied by their opponent sitting across the table from them, especially if the mediation is the first time the two have been together since the dispute. Good advocates will jot down some key points the mediator touches on and use those points later in the afternoon if the client becomes edgy or frustrated with the negotiations. Attorneys can use the time when the mediator is out of the room to reintroduce the mediator's introductory remarks.
Additionally, the mediator's introduction gives the advocates permission to be more congenial so their clients understand why they are not being the zealous advocates the clients might otherwise expect. It helps the clients understand that if counsel can be perceived as fair by their opposition, they are better positioned to settle the case. This may differ from the client's predisposed expectation, but the mediator's introduction can help the client understand that mediation is not an adversarial hearing where the lawyer should be objecting or examining the opposition like in a trial.
Coaching your client in advance also disarms adversarial or inflammatory tendencies, and focuses them on information the mediator wants to hear. If you have concerns, have clients discuss a narrowly defined subject they know, such as the company's background and their product or service.
Using the mediator as a negotiation coach in caucus is nothing new, but one new idea that is paying off in larger cases is to hire a mediator as a negotiation consultant. It is becoming more common to hire experienced neutrals to act as settlement consultants to one party in a large mediation. While that is a topic for another article, it is a good example of using the neutral's knowledge for advantage.
In closing, next time you find yourself wondering why you have to sit through another mediator's introduction speech, remember that aside from simply setting the tone and laying down any ground rules, the mediator is providing tips and insights into how to maximize your success in that mediation, leaving your clients satisfied with their representation and their result.
Lee Jay Berman has practiced as a mediator for over 20 years, successfully mediating over 1,900 matters. He is a Distinguished Fellow with the International Academy of Mediators and a Charter Diplomat and advisory board member with the National Academy of Distinguished Neutrals. He can be reached directly at 310-478-5600 or firstname.lastname@example.org. For other articles by Mr. Berman, please visit www.MediationTools.com/articles.
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