Mediators’ grand master moves and mortal sins

As a 38-year lawyer who also serves as a mediator, I've seen some amazing outcomes come about through the skills of veteran mediators. On the other hand, I've also seen some mediator "mortal sins" that derailed cases that were on a track to settle. Without identifying the parties or mediators involved, here is a short list of "grand master moves," and a few "mortal sins."

Learning from the Masters

The Karate Kid had Mr. Miyagi, the Teenage Mutant Ninja Turtles had Splinter, and we practicing attorneys in civil cases have had guidance from some remarkable mediators. Their doses of reality mixed with interpersonal skills have helped us help our clients out of litigation -- which is, after all, usually our line of work, not theirs -- and to turn back to their businesses and lives.

Here are some grand master moves I've learned from the best:

Pre-mediation calls. Having a short, private call with each party's counsel a few days before the mediation sounds so simple, but can be so effective. It only takes 10 to 15 minutes to have a confidential conversation to discuss with counsel whether there are any unusual barriers to settlement, any facts he/she chose not to include in the mediation brief, any unique client-related issues, and who will be attending and their roles. It's the stitch in time that can turn a wasted day into a successful settlement.

Perseverance. I recall a very contentious mediation in a case between former co-workers who were practically at war with each other. The level of animosity was so high that very little progress was made after a full day of mediation. Instead of declaring an impasse and having gone home at a reasonable hour, the mediator marshaled her reserve and kept at it and by 2:00 a.m. the next morning a signed settlement emerged. In other cases, mediators have persevered by telephonic shuttle diplomacy with counsel, day after day, until the deal was sealed.

Cooling the overheated room. I have settled many tough cases with the aid of a mediator with a superpower: the ability during an introductory joint session to repeat, nearly verbatim, each counsel's or party's opening comments, but with all the venom, "fighting words," and imprecations removed. It's a remarkably effective tactic: making each side hear the other side's perspective twice, once stated harshly and once stated reasonably. This type of point/counter-point presentation also effectively demonstrates the mediator's impartiality.

Assigning homework. I always advise clients to bring a good book to a mediation because there is a lot of downtime while the mediator is speaking with other parties. But that time can be put to better use than reading The Grapes of Wrath for the fifth time. One very effective mediator rarely leaves one side's caucus room without giving that party and counsel some homework. It may be as basic as asking them to think what their next move will be, depending on whether the other side makes a big or small change in position or adjustment in their numbers. Another good use of such downtime is for the party and counsel to outline any noneconomic terms that are essential to the settlement. Too many mediations fall apart because such terms aren't discussed until the last minute, when they can become deal-breakers.

There are many other grand master moves, of course. Mediators are like snowflakes, no two alike, but each truly excellent mediator has a utility belt full of tried and true Bat-tactics.

Unpardonable Offenses

Staying with the pop-culture theme, just as there were "unforgivable curses" at Harry Potter's Hogwarts, there are some mediator tactics that I consider sufficient grounds to drop the mediator from my iPhone Contacts.

Revealing confidential information without permission. Mediators treat confidentiality of private caucus communications in one of three ways. Some promise that nothing said in a private caucus will be revealed to the other side unless the mediator receives express permission. A second group treats everything said as eligible for disclosure unless they're specifically told otherwise. The last group checks with counsel before leaving the room, listing what has been said and asking if it can be repeated.

Whichever of these protocols is in place, the biggest, most unforgivable mortal sin a mediator can commit, short of accepting bribes, is to reveal one side's confidential information to the other side without permission. It destroys the mediator's credibility with the first party and gives an unfair advantage to the other side.

I recall one mediator who committed this mortal sin, and when we called him or her on it, the mediator replied, "My job isn't telling the truth, my job is settling cases." It was the last job we had together.

Insisting on personally writing out the settlement terms. Good mediators, like good doctors, don't necessarily have good penmanship. Putting the mediator in the role of scrivener makes him or her a necessary -- and necessarily unavailable -- witness if a word is illegible or an ambiguity results. To the extent mediators create the wording of contract terms for the parties, they may be stepping outside their neutral role.

There is an easy alternative: one of those mid-mediation homework assignments might be to draft a memorandum of understanding ("term sheet") on a laptop or cellphone and print copies for all counsel and parties to review. This procedure can also avoid disputes in jurisdictions which require a counter-signed writing at the conclusion of a mediation in order to walk away with an enforceable settlement, as in California.

Premature resort to a mediator's proposal. This may be only a venial sin, but still can kill a settlement. I view mediators' proposals as end-game tactics, to be used when the parties are close enough to know the case should settle, but far enough apart that a "split the difference" suggestion isn't likely to be accepted. They are helpful when one or more parties have reached the end of their ropes in negotiation, or where counsel will be blamed by the client for suggesting a higher contribution or lower demand.

When a mediator prematurely suggests a mediator's proposal, it signals that he or she has dinner reservations or basketball tickets, or just doesn't find the case interesting. That may not be true, but it leaves that impression. Worst of all, if the mediator makes an early premature mediator's proposal without all parties' agreement that one is needed, the chances of it being accepted are reduced.

Mediation is an inexact science and an abstract art. The fact that it succeeds in resolving disputes the vast majority of the time reflects as much on lawyers filing meritorious cases or asserting meritorious defenses as on mediators' skills, but even so, when a mediator makes the difference in resolving a difficult case, it's a thing of beauty.