Mediation is serious business. Clients are apprehensive. Attorneys are on high alert. Everybody knows the drill. At the end of the day, someone is going to pay more – or accept less – than they want. If that doesn’t happen, the case doesn’t settle, both parties lose – and the attorneys score. It’s a tense experience.
Everybody is suspect. Parties often claim the other side is acting in bad faith. If the parties distrust each other, how far will they move? Will they even budge? Nobody’s going to change their position when they feel they are being played by the other side. Nobody’s going to allow themselves to be pushed around. Nobody can afford to let the other side get the upper hand. And as for their overblown (or lowball) offer? It’s unreasonable. It’s outrageous. It’s an insult.
What’s a mediator to do? If a party won’t even hear the other side’s offer, a mediation is doomed. Nothing can be done until the parties are at least willing to listen to what the other side is offering.
Parties – and their attorneys – are human. People want to feel valued, vindicated and validated. They want it known that the other side has wronged them. They want their thoughts and feelings acknowledged and respected.
When people are angry or upset, they don’t think. They react. They engage. They fight. This kind of atmosphere is just exactly what you do not want at mediation. Instead, you want parties and attorneys who think clearly; who will carefully evaluate the risks of pressing forward and who will appreciate the benefits of certainty. You want people who are thoughtful, reasonable, and rational. You want people to look at things from a different angle. You want people who are willing to learn and consider. In short, you want people at their best.
The mediator is at the proverbial “eye of the storm.” The parties see the mediator as the person in charge. The attorneys look to the mediator for clues and sometimes for direction. If a mediator is tense, everyone’s tense. If the mediator gets angry, then people get unsettled at best and angry at worst.
Enter the “light touch.”
If the mediator smiles, people are reassured and at ease. If the mediator is friendly, then people feel safe. If the mediator is personable, then the attorneys and parties know they can trust him or her. If the mediator listens – truly listens – to the parties, then they know that their concerns matter. In short, if the mediator is good, the mediation’s good. Nobody sets the tone of a mediation more than the mediator.
A well placed quip; a bit of a smile; an expression of personal interest; a compliment. All these help parties feel more comfortable in this inherently difficult environment.
And what about food? A hungry person is a poor negotiator. Get some good food in them and the world’s a better place. Get something that leaves you feeling good after you’ve eaten it – and then the parties can focus on the matter at hand instead of how poorly they’re feeling. The food budget is the last place a mediator wants to save a nickel. Get it done right – and the investment in food will pay big dividends in how people feel about the process – and in their own willingness to give a little.
These are soft considerations – but they’re key. A mediation staffed with the right decision makers has all the necessary elements for settlement; the only thing that needs to happen is for the parties to make up their minds (or change them) to settle. That very change of mind – and heart – can be helped or hindered by the tone set by the mediator and the other “soft considerations”.
Why not give yourself (and the other side) every opportunity for settlement? Big guns have their place – but so do the soft touch, the reassuring approach and the personable mediator.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].