Gerald L. HilsherGerald L. Hilsher
 

 
By Gerald Hilsher

As a commercial litigator for over 30 years, I have had my share of settlement conferences before U.S. Magistrate Judges, retired state court judges, adjunct settlement judges, and private mediators. I have also been a volunteer (i.e., unpaid) adjunct settlement judge in the Northern District of Oklahoma since 1992, and in Tulsa County’s Early Settlement program since 2009. I am currently an American Arbitration Association Commercial Mediator and Arbitrator. I am most comfortable in business litigation and rarely mediate personal injury or family law disputes.

The views I express here are based on my own experience and prejudices. Like most experienced trial lawyers, wasting hours with a mediator that does not understand the case or the law and does not care to get into the human dynamic of the parties makes me crazy. To have an opportunity for a “win-win” resolution or at least a fair and efficient result go up in smoke is frustrating – especially when the client’s money, patience, and/or health are running on empty.

I admit to a bias for “evaluative” mediation. It is what I learned from U.S. Magistrate Judge John Leo Wagner when he began the Adjunct Settlement Program in the Northern District of Oklahoma. I want the mediator in my cases to bring his or her litigation experience and substantive law knowledge to bear in my case. “Facilitative” mediation, as I have experienced it, is lackluster in its approach and has been very frustrating for me. I recognize it is possible I just had the wrong mediator, but I could not understand why we were paying someone to simply be a messenger – transmitting offers and counter-offers to people sitting in separate caucus rooms. More than that, I wondered why we bothered explaining the case to a mediator who did not reframe the issues or involve himself in the emotional constructs or dynamics of the people involved. In my view, the parties needed someone to give them a dose of reality and the risks involved in not settling. The “facilitative” mediator, in my admittedly limited experience with them, needs to get more involved.

So, what do I look for in an “evaluative” mediator? It’s difficult to boil down to a handful of large points, but I will try. There are four important characteristics for a successful mediator, but I readily admit that the devil is in the detail.

 
The Good Traits

  1. Successful Mediators Build Rapport. The Successful Mediator is one who can build rapport with the parties and the attorneys.
     
      (a) Active Listening Skills. Lawyers are often too quick to speak. More often they fail to listen. A successful mediator should use active listening skills to get behind the rhetoric and posturing to see what the issues are for each of the parties to the dispute. The mediator should not go into the mediation believing he or she knows “this case” because its like another case mediated last year. The mediator must give the parties their due – let them speak and listen to them. The keys to settlement are waiting for you there.

     

      (b) Understanding Interpersonal Dynamics. Another way to express this is “empathy,” which cannot be taught, but may be enhanced through understanding and practice. A major obstacle at many mediations is a lack of awareness or insensitivity to the needs, wants, and desires of the other party’s ego or the other party’s need to simply be treated with respect and dignity. The fight is often more about winning (or crushing the adversary) than the legitimacy of the dispute. Someone’s feelings were hurt. Someone did not live up to a promise. Someone looks small and weak to their friends or associates. A failure by the mediator to recognize the human dynamic may result in an unsuccessful mediation.

     

      (c) Seeking the Solution. The mediator who tells the litigants what they must do is doomed to failure. As the lawyer for plaintiff’s side of a dispute, I can tell you the mediator did me no favor when he told the defendant at the beginning of the first caucus that he must settle because he is wrong and plaintiff is right. The proper approach is not to dictate terms, but to teach – to explore with the litigant, through proper questioning, the weaknesses of the defense on the substantive or procedural issues. A party to a dispute is more likely to understand and believe the reality of their position if they are led to the answer and find it themselves rather than having the answer crammed down their throat. It becomes an adversarial issue between the mediator and the litigant at that point.

     

  2. The Successful Mediator has a Sense of Reality. The successful mediator brings a sense of reality to the conflict – deflating excessive expectations and dramatizing risks of trial.
     
      (a) Experience of the Mediator. The successful mediator should have experience in the substantive area of the law at issue. It builds trust and confidence in the mediator’s evaluation of the dispute and the likely result to be obtained in litigation.

     

      (b) Non-Confrontational Expression of the Case. Explaining differences of opinion and viewpoint in mediation can be tricky. No attorney representing a litigant wants to be challenged in front of his client at mediation over his or her view of the case. The litigant also has deep-seated views of his or her case. Speaking with the attorney privately may be useful to protect his relationship with his client, and finding a non-confrontational means of educating the client is critical. A successful mediator will use probing questions or past examples to present a non-confrontational means of causing a re-examination of a party’s position. Careful questioning of “what ifs” and “if that’s” may provide a means of exploring worst case scenarios and shining a light on the potential risks of litigation.

     

  3. The Successful Mediator is Persistent and Stays Focused on the Mission. Parties to mediation react favorably when they see that their mediator has come to the mediation prepared and interested in the pursuit of a fair settlement. Active and visible involvement by the mediator rather than a passive approach builds the parties’ confidence that with this mediator a settlement is possible. Taking notes, asking questions, moving from the party’s positions to their interests and needs, reframing the issues, eliciting ideas and exploring fresh alternatives, and testing the viability of any proposed settlement gives outward confirmation that the mediator is the advocate for settlement. Gaining the parties’ trust from the beginning is essential because it assists the mediator in deflecting emotion, focusing on practical solutions, and keeping parties focused. The successful mediator not only gets the parties to come to an agreement, but provides his or her assessment of whether their agreement can be implemented, i.e., whether it is workable if it involves something other than the payment of money. Solving the dispute/curing the problem permanently should be the mission. Full and complete documentation of the settlement is a must and the mediator must keep track of the offers and counter-offers as they move through the day.
     
  4. The Successful Mediator has a Good Sense of Timing and of People.
     
      (a) Setting the Tone. The mediator should set the tone for the mediation by giving it his or her full attention, by encouraging and exploring the issues, and being the advocate for settlement. The mediator must actually be and also appear to be impartial and must keep confidences. It does not matter that the mediator has seen this same type of case before and believes he holds the key to settlement. A mediator who comes into the session and tells the parties what they need to do is doomed to failure. The parties must be nudged to settlement. The most successful mediators get their parties to “yes” with them believing it was their idea. Successful mediators will try to get an advance feel for the parties by contacting the respective lawyers in advance for their read on critical issues, personality traits, emotional content, etc. Forewarned is forearmed as the saying goes and may help the mediator set the tone and anticipate “speed bumps” along the way.

     

      (b) Developing Trust. Trust in the mediator is critical. The successful mediator is perceived as impartial, objective, honest, reliable, intelligent, and respected by his peers in the legal community. He or she should be a quick study who grasps issues straightaway and understands the dynamics and complexities of a dispute. The parties must learn through the process that the mediator has each of their interests at heart and is concerned about their well-being as disputants. To develop this trust, the mediator must reflect his respect for the parties, including the “role players,” e.g., the insurance adjuster, and must ensure that everyone is treated with dignity. Trust is built on the skill of active listening, acknowledging the concerns of the disputants, and recognizing the keys to the deeper emotions that underlie the conflict. Exposing the weaknesses of a party’s case must be done with some skill – it must be objective, reasonable, and non-confrontational.

     

      (c) Skillful Examiner. The successful mediator has the probing skills of a good psychiatrist, asking pertinent and insightful questions that identify fundamental assumptions, strongly held beliefs, and other factors that will guide a party’s decision-making. The mediator must set boundaries and ground rules, confront violators and redirect their focus to matters at hand, and be active in summarizing and restating the parties’ positions to promote understanding and acceptance of the fact there is more than just that party’s view of the world at play. The mediator must screen out the issues that cannot be mediated, but must also be careful not to lose a sense of creativity to propose alternative, “out of the box” solutions or considerations. At times, the mediator must defuse emotionally difficult situations and control his or her own feelings.

     

      (d) Sense of Timing. Successful mediators seem to have an innate sense of timing. It may be that this is simply built into their genes or it could be that they do not try to rush to a solution and allow clues to develop before taking action. To get to “yes,” a successful mediator has to get past the party’s posturing, the lawyers’ egos, and the false assumptions of the parties that only their “truth” is really “The Truth.” This takes time, patience and stamina. Some mediators simply wear down the disputants by outlasting them. Timing also involves assessing when it is time to quit – to either shut down for the day or perhaps to put a mediator’s recommendation on the table. Allowing a few days to consider a mediator’s recommendation allows time for the plaintiff (and his or her spouse) to “spend” the money or talk to family or friends for support. It can also allow the defendant’s representative or insurance adjuster to talk to higher-level authorities in the company and gain greater comfort in making a deal. The successful mediator does not end his or her involvement when the formal conference is over, but continues to make contacts, offer new suggestions, or assess whether events in the litigation make a renewed effort at settlement more likely.

     

 
The Bad Traits – What to Avoid in a Mediator.

Before selecting a mediator, do some homework and ask some questions. Everyone is different – some mediators may excel in intelligence and familiarity with the pertinent area of substantive law, while others may be more empathetic or relatable to the parties. It is a fair exercise, in my opinion, to contact the proposed mediator directly and inquire of his or her experience in your area of substantive law or his or her preferred approach, i.e., whether he is “facilitative” or “evaluative” or whether parties are normally kept separated into caucuses.

Beware if your search of references yields any of the following traits:

  1. The Mediator who knows the answer. It is not fair to the litigants or their lawyers to have a mediator who has decided the outcome in advance. A closed mind does not build trust and cannot reflect empathy toward the parties whose dispute has unsettled their personal and/or professional lives and businesses.
  2. The Mediator who would rather talk than listen. Some lawyers practicing mediation and some retired judges who practice mediation are used to telling others what they should do, and then expect them to do as they are told. I find that rarely works in mediation. It is not just the party’s telling of the story, but the mediator’s listening to the story that achieves the emotional catharsis that otherwise blocks the party from engaging in reasonable dialogue and consideration of various settlement scenarios. Talking instead of listening reflects a lack of empathy by the mediator and does not yield the trust quotient necessary to gain the confidence of the litigants. One must also question the patience, persistence, and staying power of someone who simply wants to direct the parties to his or her preconceived solution and call it a day.
  3. A Lack of Integrity. A mediator who cannot keep confidences is anathema to the mediation process and reflects a lack of integrity that is crucial to building trust and confidence. Any sign of partiality toward a litigant, his lawyer, or a legal position or policy can also damage the process. In small legal communities, it is likely that professional relationships and even familial relationships will be a part of the calculus of selecting a mediator. It is critical that potential conflicts of interest caused by these relationships are disclosed and fully discussed in advance of the engagement. It also reflects on the integrity of the mediator if he or she fails to prepare for the assignment. This lack of preparation can occur for any one of several reasons, no doubt, but the worst is when the mediator considers himself or herself too important, too knowledgeable, or too accomplished to do the advance work necessary to come to the mediation prepared to see it through. Some lawyers are simply too self-absorbed for this sort of work despite their years of experience in litigation and settling their own cases.
  4. The Mediator with No Process Skills or Interpersonal Skills. Remember that I disclosed my bias against facilitative mediation in the beginning of this article, but my complaint here is not simply the differences between facilitative and evaluative mediation. Even a facilitative mediator must have process skills and must engage in relational dynamics, because it’s people that are making important decisions about their personal lives, their businesses, and their pocketbook. Restating and clarifying positions, summarizing the “bidding,” and even pushing and pulling the parties to see outside their own set of facts is important. A mediator that appears to be just “going through the motions” has done nothing to enhance the settlement of your case and may have damaged your ability to settle in the future. Although many lawyers today appear to be out of practice in communicating offers without the aid of a mediator, someone who simply carries messages back and forth provides little bang for the buck.

References of Interest: I examined a number of professional articles and opinion pieces that underscore the points I have tried to make in this paper. The most interesting was a survey published by Stephen B. Goldberg, a mediator and law professor at Northwestern University of School of Law in Chicago, and Margaret Shaw, a mediator in JAMS’ New York office who teaches at New York University Law School. The article is entitled The Secrets of Successful and Unsuccessful Mediators and is found at 24 Alternatives to High Cost Litig. 81 (2006).


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