Many years ago I participated in the mediation of a case with many defendants. The Plaintiffs were husband and wife who had sued nearly everybody they could touch. During the course of the litigation (and the mediation) it became clear the plaintiffs were on the war path. All of their claims against all the defendants lacked merit. But the Plaintiffs had filed suit, so we were all at mediation with our clients. We filled a large conference room.
We mediated all day long and came up with a complete settlement package that offered the Plaintiffs more than they were entitled to. The prospective costs of defense were real, and it was worthwhile to offer the plaintiffs a great settlement package so we could wrap the case up.
After the settlement package was presented, the Plaintiffs conferred with their attorney for a long time – and then rejected the offer. They wanted more money. The package had included money and other additional rights the Plaintiffs weren’t entitled to. But in the end they just wanted more money.
So the mediation failed. Everybody went home.
What went wrong? We had all mediated in good faith. Nobody left early. Everybody was cooperative. We had made good progress the entire day, and based on our discussions with the mediator it seemed like our final package was something that would be appealing to the Plaintiffs. But at the last minute they just dug in and refused to accept it. What went wrong?
The driver hadn’t attended the mediation.
Plaintiffs were husband and wife, but only one of them attended mediation. At the end of the day, the spouse who attended made a phone call to the other spouse. The other spouse (apparently) rejected the package. In actuality the non-attending spouse scuttled the mediation.
Who was the driver in that case? Was it the attorney? Or the spouse who attended mediation? No – it was the spouse who didn’t attend. Unfortunately the mediator had little (or no) access to this person – but this non-attending spouse was the single most important party in the entire mediation. They drove the entire process – and it failed because they refused to get on board.
It ultimately turned out fine for my client. We went to trial. We won and received an award of 100% of our attorneys fees. But there was still a time component and an emotional cost to the trial. It would have been better for everybody if had settled the case at mediation. But the driver wouldn’t get on board.
Mediation is about relationships, decisions, ego, emotion and “the moral high ground.” Some people are cooperative. Others are less so. Some people express strong emotions. Others express very little emotion. Sometimes parties won’t settle because they want more. And sometimes they don’t settle because they want the other side to get less. In complex or difficult mediations, an effective mediator must immediately identify the “drivers.” Early buy-in by these drivers is essential. If they don’t buy in, then they may walk out. And when parties or counsel walk out, mediations end quickly.
That’s not to say that the other participants aren’t important – they are. But cases only resolve when there’s full consensus. So at the start – and during the middle – and at the end of the mediation, the mediator must determine who the drivers are, and then must work overtime to find out their agendas, their concerns, their emotional “hot” buttons and what keeps them up at night about their case. Only when the mediator identifies and resolves these critical sub-issues can the mediation move forward to a successful conclusion.
As mediator I regularly work with parties and legal counsel to get cases resolved. Few people tell me up front what the hidden issues might be. I have to uncover them one at a time. Nobody tells me who the drivers are. I have to figure that out – and quickly.
What does that mean about effective mediators? They must be able to listen actively, clearly, and with discernment. They must be able to watch and understand people and what motivates them. Effective mediators are continually watching and evaluating the players: what spins them up, what calms them down, things they value and things they don’t. An effective mediator can turn on a dime (as needed) to get (insofar as possible) these drivers what they need so the case can settle. Sometimes that’s money; oftentimes it’s something other than money. Sometimes it’s what the money represents. People who feel validated and respected are in a far better position to settle a claim than those who feel abused, neglected, oppressed or manipulated. An effective mediator must be an expert at understanding people, putting them at ease, reassuring them and helping them feel like they’ve been recognized, respected, and are getting a good deal. Otherwise, in difficult cases where mediators don’t do this the mediator just spins their wheels like everyone else and the case goes nowhere.
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].