How to Extract Best Value from your Mediator

July 29, 2013 at 3:32 PM

Litigation lawyers know that although they have an overriding duty to the court, they also have a duty to act in the best interests of their clients.
The savvy litigators are therefore both entitled and expected to gain the best possible advantage for their clients in the way they engage in the court process.
Likewise, smart litigation lawyers should view mediation as both an opportunity and obligation to maximise benefit for their clients, subject only to ethical and professional constraints.
It is perfectly legitimate to go about extracting maximum value from a mediator, just as it is legitimate to extract maximum value from a judge.
Respect or admiration for the mediation process, should not be allowed to blunt the focus on client interest.
Here are some suggestions for lawyers as to how to optimise mediated outcomes for your clients.

View the Mediator as a Means to an End

The mediator should be viewed as a resource to be used to the advantage of your client.
Throughout the mediation process, you should be regularly asking yourself "What should I be doing or saying in order to derive maximum benefit from the mediator for my client".
All mediators have skills, knowledge, strengths, weaknesses and idiosyncrasies, all of which should be exploited.

Be Careful What You Say About Your Client

It is usually a good idea to be objective and realistic when speaking about your client to the mediator. That assists the mediator to relate well to them.
Negative comments however should be tempered with the positive, so that the mediator acquires a sympathetic, rather than a jaundiced view about your client.
Do not tell the mediator that "My client is one of the most difficult I have encountered, as you will soon find out". Instead, tell the mediator that "My client is stubborn and aggressive, but he has been hurt and unfairly treated, and so his insistence and anger are understandable."
The former statement might result in the mediator viewing your client as a problem undeserving of assistance. The latter statement should result in the mediator viewing your client as a challenge, but worthy of assistance.

Provide Context and Paint a Picture

One of the best opportunities for you to influence mediators comes when the mediator asks "What is this mediation about?"
The answer should result in the mediator viewing the case from the perspective of your client.
Do not tell the mediator that the case is "merely about my client getting a bit more contact with the children." Rather, tell the mediator that "the case is important for my client who is seeking a better balance of time with the children so as to participate more fully in their lives."
This latter statement should be backed up with the essential facts which serve to explain that, such as "He made this application out of frustration and as a last resort, because his former partner steadfastly refuses to acknowledge what he can offer the children, as is confirmed by the psychologist's report."
In short, you should aim to have the mediator view the case through lenses favourable to your client.
That is because, although mediators do not formally decide the outcomes of mediations, they can if truth be told, influence them.

Stay On Side with the Mediator

Just as it rarely serves your clients' interests to get offside with a judge, tempting as that may be, so too is that the case with mediators.
A core principle of persuasion is that people agree with those who they like. Therefore, if you want a mediator to be agreeing with you, make sure that they like you.

Do Not Usurp the Mediator's Role

Throughout mediation, mediators make micro and macro decisions as how best to progress the negotiations.
It is wise therefore not to disrupt a mediator's flow, or worse still attempt to impose your views on how the mediation should be conducted.
Mediators however are not perfect, and at times require and appreciate assistance.
If you consider that the mediation requires a change of direction or some intervention is required, you should suggest that, rather than declare that it should happen.
For example, instead of saying "Let's hear from lawyer for child now", ask "Might it be a good idea to hear from lawyer for child now?" This gives the mediator the opportunity to say "Great idea" or "No, let's continue the present discussion a bit longer." It also avoids the risk that the mediator will overrule you, which is not a good look for you.

Do Not Undermine the Mediator

If you wish to take the mediator to task over something, do so in private so as to avoid the mediator losing credibility, and thereby being less able to assist your client.

Keep in Mind that Goals May Not Be Aligned

A lawyer's goal in the mediation is not necessarily aligned to that of the mediator.
In broad and simplistic terms the mediator seeks a settlement, whatever it might be. To that extent, lawyers should keep a wary eye on the direction in which the mediator is moving the negotiations.

Ascertain the Mediator's Knowledge and Thinking

Lawyers are better able to make sound tactical and strategic decisions during the course of negotiations if armed with good information.
The mediator is likely to possess information or have views which will assist you. This includes information which the mediator might not divulge unless asked. Therefore ask. You will likely to be asking for the information in the absence of the opposing lawyer, in which case you can steal a march over them.

The mediator might be asked: "What are you proposing to do next? What do you make of my client? What do you make of the other party? Do you have a view of how this case is likely to settle? Has the other side told you their bottom line yet? Will you be asking for it? Do you think that the other party is likely to increase their offer? By how much? Do you think that my client is likely to change her position? By how much? What do you think of the other side's legal arguments? What do you think is likely to happen if it went to court? How long do you think it will take for settlement to be reached? Do you think settlement is likely? Why? Do you think that there might be a hidden agenda? How keen do you think the other side is to settle? Has the other side mentioned to you that.......? Is there anything that it would be useful for you to pass on to me in confidence?

In order to ensure that the opposing lawyer does not steal a march over you, you might also ask the mediator "What have you told my opponent?"
Of course, the mediators may decline to answer some of your questions, but there is no harm in asking. Sometimes mediators will volunteer answers to your questions at a later stage, when they consider it is proper to do so.

Ask the Mediator for Assistance

Mediators like to be asked for help because it enables them to influence the negotiations in an effective way. They will be prepared to offer useful suggestions, provided that the integrity of the process is not compromised.
The mediator might be asked in private: "What would you suggest I do next? Should I disclose that information yet? What tact would you recommend that I take? How should I handle my client? How should I handle the other lawyer? How do I get over the problem of.......? Does my approach seem sensible? Is that a good idea? Should I be doing anything different? How do you think I should present the proposal to the other side? When is that best done? Will you give me feedback after I have done that?"

Promote and Assert Your Authority

Ideally, the mediator should be beholden unto the lawyer, not the reverse.
The lawyer should subtly or not so subtly project his or her standing and status, so as to better influence the mediator's thinking and decision making to the advantage of the client.

Where the interests of the client demand it, override the mediator.

Nigel Dunlop first trained as a mediator in 1995 and since then has conducted over 500 family, civil and commercial mediations with a 93% settlement rate.


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Category: Mediation