The thin line that all mediators walk

In a recent post-mediation follow-up email I received from one of the lawyers in a bitterly fought case, it was suggested to me that recent conduct of one of the parties had revealed "where the truth lies" in the case. I emailed back a few ideas about how to move toward a settlement and also observed that I wasn't as convinced that this conduct had, in fact, revealed the truth about this particular party's position in the case. A brusque responsive email arrived moments later questioning how I could be so blind to the obvious truth of the situation. I responded by saying that my goal of advocating for a settlement instead of advocating for the positions of the parties often leaves me with little to say about who is right, who is wrong, and where the truth actually lies. Although what I said was true, I doubt that it left the lawyer with much comfort - because it was obvious that he wanted me to "take sides" and agree to share in his perception of the truth. He wasn't looking for a governing philosophy of the mediation process, he was looking for me to advocate for his position.

The fact is that mediators walk a razor-thin line on this issue, often to the dissatisfaction of the parties. Most mediators, and I would be one of them, would tell you that they are unconcerned about resolving factual discrepancies or searching for the truth in a given dispute (frankly, I think that in mediation, finding the truth in human affairs is way above my pay grade - arbitrations are another story altogether). Most mediators, and I as well, are more interested in identifying areas where disputed facts and disputed legal issues put the parties at risk - a risk that could and should be avoided by a resolution that the parties control through a negotiated settlement process. This focus on risk analysis is at the very heart of the mediation process, but the ultimate resolution of the disputes that create the risk is usually not an effective use of time, money or effort at mediation.

However, it can be very difficult to discuss risk in a thoughtful way without the mediator making at least some assessment of that risk. An example will illustrate this. Let's say that the case involves a commercial breach of lease. The landlord and the tenant enter into a five-year commercial lease. At the end of the third year the tenant suffers financial difficulties and, no longer being able to afford the rent, vacates the premises leaving two years remaining on the lease. Let's further assume that the landlord makes zero effort to release the premises with no legal excuse for failing to find a new tenant. At mediation the defense, naturally, points out that the landlord completely failed to mitigate its damages. The landlord takes the position that recovery of 100 percent of the rent for the remaining two years of the lease is a certainty. Anyone with any experience in this area of practice would immediately recognize that the landlord had a legal obligation to mitigate the damages by trying to find a new tenant and that the landlord's abject failure to do so will undercut the landlord's claim.

But here's the question: When the mediator says to the landlord and its counsel: "I think you face a substantial risk in this case because it looks like you failed to mitigate your damages," has the mediator made a judgment about where the truth lies? Has the mediator "sided" with the tenant? Or, has the mediator simply determined that mitigation of damages is a major issue in the case and pointed out that risk (a rather obvious risk under these particular facts) in a neutral fashion? Is it necessary or important to the outcome of the case whether the mediator "believes" that the landlord failed to mitigate its damages, or it is sufficient and equally effective to merely highlight the issue in a clear fashion without expressing an opinion about the final outcome?

Take a more subtle issue - the credibility of a witness or party in a case where credibility is a central issue. Let's assume that in the first separate caucus with the defense lawyer the mediator is told: "The plaintiff is a liar. We have her lying in her deposition and we have absolute, irrefutable evidence of her lying." Let's also assume that the mediator then spends some time with the plaintiff and her lawyer. The mediator asks questions of the plaintiff and receives what the mediator perceives to be evasive answers, or answers which seem to contradict objective, written evidence (plaintiff says she never called a particular person but her cellphone records show 24 calls to that person's number). The mediator decides to take the plaintiff's lawyer aside and have a "candid" conversation during which the mediator expresses concern about the plaintiff's credibility. Has the mediator "decided" that the plaintiff is untruthful? Is the mediator merely conscientiously pointing out a perceived risk?

What is equally interesting about the dynamic of mediation in each of the above examples is the yearning of the other party to have the mediator accept and embrace their position. In the example of the breach of lease, the tenant and its lawyer will, at some point, probably say something like: "You agree that we're right don't you? Or: "You can see that we're going to win on this point." In the credibility case, the discussion might be: "She's a liar, isn't she?" Or: "Can you believe that they would even think that they can try this case with that awful liar in the other room?" In each situation, the party is seeking affirmation that the mediator agrees with them about where the truth lies. If the mediator declines to embrace the contentions of that party, by, for example, refusing to accuse the plaintiff of lying, the party making that contention may become disappointed and frustrated at the mediator's inability to recognize what that party sees as the open and obvious truth of the case. Or, the party may think that the mediator's inability to understand the simple truth of the case is a reflection of the fact that the mediator is simply unsophisticated, "weak" or plain dumb. No party reaching any of those conclusions will likely be much persuaded by what the weak, dumb mediator has to say.

The fact is that the mediator's "embrace" of what parties perceive to be obvious truths is unnecessary to the successful resolution of disputes through mediation. And, in a sense, it is neither fair to the parties nor to the mediator. No party would feel comfortable with the mediator taking sides and no mediator would feel comfortable in being asked to take sides. Those actions are contrary to the mediator's role as an honest broker of risk analysis. What is more important, in fact vitally important, is the ability of the mediator to help the parties identify risk and the ability of the parties to acknowledge the risk and the impact that the risk may have upon the ultimate outcome of the case.

The reality of the mediation process is that the mediator's conclusions about the contentions of the parties, let alone his or her willingness to embrace those positions or to advocate for those positions is not only unnecessary to a successful resolution, it is usually inappropriate. It introduces a disquieting element of partisanship and erodes the neutrality of the mediator - and it is neutrality that is the foundation of the mediator's credibility and effectiveness. So, the next time you feel yourself getting frustrated that the mediator isn't accepting the simple truth of the case, as you see that truth, stop and ask yourself whether it's really important to get the mediator to agree. Or whether it might be a better use of your time to make sure that the mediator has done something far more simple and far more important - to communicate your view of the truth in an effective way so that the other side can understand and appreciate the risk that arises from the situation, regardless of whether you are correct about where the truth actually lies.