By Mark LeHocky – ADR Services, Inc.
Civil mediations are by their nature stressful events. Disputants can’t agree on who’s likely to win or the shape of a resolution. So you bring in a third party who may agree or disagree – or at least raise serious concerns – as to your assessment. Stressful to say the least.
It doesn’t need to be this way. Practical steps follow to reduce the stress and anxiety of unpleasant and avoidable surprises. But first, let’s consider what we’re up against.
Coupled with the stress of mediations is the reality that clients and counsel are pre-wired to overweight their own prospects and underweight the tradeoffs. Behavioral studies confirm that clients and counsel routinely overvalue their positions and their worth. In turn, plaintiffs frequently leave money on the settlement table (compared to the litigated outcome) and defendants periodically encounter painful losses. Bad for clients; real bad for client relations.
Modern mediation practice often makes things worse by delaying a thorough an unvarnished assessment. Rather than engaging early and often with the other side about merits and settlement options, lawyers frequently delay a deep dive until the mediation itself. By then, the sunk costs of the litigation may eclipse the value of the dispute. As well, positions have by then hardened even further, making it more difficult to readjust expectations precisely when expectations need to be reset. Finally, lawyers often resist sharing their mediation briefs – keeping the other side in the dark pre-mediation as to their best evidence and positions.
So, what to do? A few recommendations to reduce – if not eliminate – the stress of mediations for both clients and the folks who represent them:
Talk to the other side about the merits early and often: The earlier opposing counsel meaningfully discuss the substance of a case, the earlier clients receive a real sense of the good, bad and ambiguous of most disputes. Conversely, waiting until the mediation to discover core misunderstandings about facts and positions can lead to awkward client conversations about why the case assessment has changed and why it took so long to do so. As well, talking early on about merits as well as solutions may surface alternatives – repaired business relationships, reworked contracts, reinstated employees – that may evaporate later.
Share your mediation briefs: While some attorneys prefer not to share their mediation briefs, think about the consequence of not doing so. Without the benefit of the other side’s best effort to explain their position, your client only sees the most positive spin on your side’s position. Rose colored glasses only become rosier, positions only harden, and the process of resetting expectations is made more difficult. Conversely, sharing briefs allows clients to better assess different potential outcomes in advance, adding some needed perspective to the mediation dialogue to follow.
Share those briefs early: Adjusting to different, and particularly adverse, information takes time, particularly when there may be different constituents involved – business partners, insurers, family members, etc. More than one “leveling” conversation may be needed. Skilled mediators know so and ask for briefs to be exchanged a week or so early. It’s not just a matter of convenience for your neutral; it’s often needed for clients to reassess and recalibrate. Late briefs only short-change this needed recalibration process.
Leave the invective at home: As we all know, mediation is a consensus-driven process. No consensus; no deal. With that in mind, think about the impact of a brief or oral presentation laced with invective. Words like “spurious”, “baseless” or direct attacks on clients and their counsel don’t prompt consensus. It has the opposite effect, raising anxiety among clients and demands to respond in kind: “I know you are, but what am I?”
And by the way, the invective does not impress mediators, judges, or arbitrators. After a few decades in the neutral seat, nothing is more obvious.
Nonetheless, attorneys sometimes protest that their clients want to see an invective-laced brief and all its associated name-calling. If you can’t convince them that it truly doesn’t help, put the invective in a separate and supplemental “mediator’s eyes” only brief. But keep in mind the preceding paragraph.
Embrace the joint session: As with a balanced mediation brief addressing strengths, weaknesses and solutions, a balanced joint session dialogue can go a long way to striking a deal. As well, it is a great opportunity for your client to assess the other side’s best case and explore options.
Any fear of counsel and clients behaving badly can be allayed by pre-mediation client conversations about the strategic value of an open exchange: “If we are not able to fully settle now, we will be better informed and prepared for what comes next.” As well, consider a pre-mediation conversation with your neutral about the set up for such discussion. With the ground rules in place and the client prepared for a conversation rather than a conflagration, stress levels lower and productive exchanges become more likely.
Eliminating all stress from mediations is aspirational, but unlikely. However, the steps outlined above should significantly reduce the stress and anxiety of unpleasant surprises and unanticipated feedback for all concerned.
Mark LeHocky is a mediator, arbitrator, and special master with ADR Services, Inc. A former litigator and public company general counsel, Mark’s nationwide ADR practice includes complex business disputes, intellectual property, employment and consumer class actions, insurance, professional malpractice, and mass and individual torts. For his ADR work, Mark was voted 2022 Mediator of the Year for San Francisco and has been repeatedly voted a Best Lawyer in America for Mediation through the BestLawyers© rating system.
Mark also teaches at UC Berkeley’s School of Law and Haas Graduate School of Business on the intersection of law, risk assessment and effective decision-making. His full background is at www.marklehocky.com
 See, Donna Shestowsky, PhD., The Psychology of Procedural Preference, How Litigants Evaluate Legal Procedures Ex Ante, Iowa Law Review, Vol. 99, pp. 637-710 (2014); Randall Kiser, Beyond Right and Wrong, The Power of Effective Decision-Making for Attorneys and Clients (Springer 2010), pp. 29-48; Mark LeHocky, Rethinking Mediation with Behavioral Science Data, Consumer Attorneys of So Cal Advocate Magazine (August 2017)