The skeptic's guide to mediation

The only thing more surprising than the number of times that I have started a mediation with one or both parties telling me some version of: "This case will never settle," is the number of times that the very same case settles at mediation. Often, I feel that the parties or their counsel secretly hope that the case won't settle. I was reminded of this when reading a recent commentary by a political "talking head" wherein she described President Barack Obama's re-election as the "triumph of hope over experience." A comment that could be applied to mediation by reversing it - because experience shows how effective the mediation process is in resolving cases, even when the parties expect, or even "hope" that a case won't actually be settled.

Why do lawyers and parties resist, or sometimes even hope that a case won't settle, and why are they skeptical about the potential success of mediation? Why does mediation succeed in spite of that skepticism? And how can lawyers and the mediator overcome the secret desire to push the settlement away? An understanding of the complex reasons that underlie these feelings leads to more efficient and more effective mediation.

There are myriad reasons why parties hope that a case won't settle. Usually, there is a considerable difference between the reasons that the lawyers don't want to settle and the reasons that their clients don't want to settle. While financial self-interest is often thought to be the number one reason why lawyers don't want a case to settle, it is my experience that in reality this is rarely the case. Having said that, it is true that occasionally, but not often, a mediator will encounter a lawyer who is clearly acting out of economic self-interest ("no case settles before its time"), but generally lawyers recognize that sacrificing a client's interest on the altar of more billable hours is rarely a good career move. Long-term relationships with clients (including insurance carriers) are built on professionalism, not short term billing goals - most good lawyers know and appreciate this fact.

My experience is that lawyers hope cases don't settle for an entirely different reason: some element of fear, usually mixed with a healthy dose of insecurity. The fear factor is a formidable impediment to the settlement process. Why do lawyers fear resolution? Often it's because they have over-promised and created unrealistic expectations in the mind of the client, or they have their own unrealistic expectations - and a settlement will unmask those expectations by putting the reality of the situation squarely on the table. Thus, for the lawyer who has told the client that he or she will have to pay almost nothing to settle, and it appears during the mediation, that "nothing" is going to be "something," there's no place for that lawyer to hide. The result: a disappointed and upset client. Similarly, for the lawyer who has told the client that she or he will walk out with a large amount of money, and the stack of dollar bills on the table at mediation looks painfully small, there's going to be some explaining to do. And, for the lawyer on a contingency with the expectation of a big pay-day, the reality that there won't be a new Porsche in the garage might be hard to face.

The insecurity component works differently. Settling a case requires evaluating risk and making decisions. To understand this better, let's use the analogy of a medical intern in the very early stages of his or her hospital experience - working in the emergency room. A patient arrives in distress. The intern is called upon to evaluate the patient's condition and to make decisions (potentially life-saving or life-threatening) about the best way to treat the patient. Imagine further that the choices aren't all that clear and that the outcome that results from one choice instead of another might be unclear as well. Although the intern is, of course, trained, and has the resources of more experienced medical personnel there to assist, the analogy shows how difficult, even paralyzing the decision making process can be. For lawyers who are unfamiliar with a particular area of law, or who lack the perspective provided by years handling cases, the same "paralysis of analysis" can set in, and leave the lawyer hoping that the case won't settle, simply because not settling avoids having to make a decision when the fear is that the decision may well be wrong.

Clients hope that cases don't settle for different reasons. My experience is that clients don't settle cases for two main reasons. First, because they have become so "addicted" to the fight that they cannot let go. They have internalized the conflict - the fight has become as much about them as about the facts and the law. It has become such an important part of their life that they feel that their life will be less after the fight is over than it is while the fight is going on. The lawsuit, in other words, provides a kind of negative excitement, and they fear being bereft of that excitement if the case settles. Second, even when they are prepared to "let go," clients, like their lawyers, also seek to avoid the ultimate disposition of the case when they fear that their own expectations may not be met. Clients may be carrying within themselves both economic and emotional expectations - they may feel that when the case settles they will feel vindicated emotionally (these are clients who see themselves holding the sword of justice) and made whole financially (or have to pay only a pittance if they are defendants). As the mediation process unfolds and the clients realize that neither expectation may be met in the way that they had hoped, they avoid the disappointment by not settling, preferring instead to wait for a "better day," which really means that they are hoping that a different day will mean a different result.

Lawyers and parties are, in my experience skeptical about the success of mediation for a much simpler reason: they themselves are not prepared to settle - but, because it's "socially unacceptable" to admit to the mediator at the outset of the mediation that you are unwilling or otherwise unprepared to settle, you simply tell the mediator that the other party is not willing or able to settle - in other words, you project your own resistance onto the other parties. Of course, there are cases where there are objective r easons why a settlement is unlikely at that particular moment - it's too early, too late, there's a dispositive motion pending, issues of insurance haven't been resolved, someone has had a financial reversal, or the like. But many times, it's the subjective factors, the thinking of the parties, and not outside, objective events, that create the perception that the case can't settle.

How can you, as a lawyer, help the mediation succeed in spite of this skepticism and in spite of the secret hope that the case won't settle (and how can the mediator assist this process as well)? For lawyers who fear the settlement process, there's a simple answer: evaluate your case realistically and be painfully honest with your client in order to create realistic expectations from the outset.

When it's the client who must overcome fear and the secret hope that a case won't settle, one powerful tool is the use of what Barry Goldman, in his book "The Science of Settlement," calls "recasting." Recasting describes the process of moving a party away from the inward focus on either the perceived very good parts of the case (overcoming what is called affirmation bias) or the focus on the emotional reasons why a settlement would be bad (fear and insecurity), and toward a more rational evaluation - what Goldman describes as the transformation of the client into the "Reasonable Adult." In the process of recasting, the lawyer (before the mediation) and the mediator (during the mediation) suggest to the party that the party is not one of those people who let their emotions run away with them, or who are so unsophisticated as to believe that the justice system is perfect, or have such empty lives that the litigation process should become the central focus of their existence, or who are incapable of being realistic. In the process of recasting, the party eventually "affirms" that analysis and adopts it as his or her own. Goldman suggests that this works because: "Few people want to admit that they have unrealistic expectations, that they have nothing going on in their lives other than their lawsuits, or that they think the justice system is perfect. No one wants to argue with a person who tells them that they are realistic and sophisticated and have a mature understanding of the world."

An understanding of some of the underlying reasons why lawyers and parties are skeptical of the mediation process and seek to push away the process of resolution is essential to making your mediation practice more effective and having more satisfied clients.