Mediation

Mediation EI Enhancer #1:

Connecting with Clients

Having mediated with some of the top mediators in the country, I’m surprised at how many of them will come into the room or videoconference and jump into the facts of the case or start asking legal questions without barely introducing themselves to the parties. Even worse, some of them may say hello briefly, but make no effort to connect to the clients/parties by asking simple questions to find out more about them.

For many clients, this is their first mediation. Even for those with some experience with mediation, they likely don’t know the mediator and aren’t fluent in mediation like the lawyers are. Nevertheless, it’s amazing how many experienced mediators just skip over this step altogether and jump right into the case, like a doctor walking into the room and going straight for the prostate check. Yikes!

Establishing a relationship is the first step in building trust. Too many mediators assume that their experience as a former judge, as an experienced mediator, and/or as a long-time attorney buys trust. But they confuse respect with trust. Trust isn’t bought; it is earned. And deals are made based on trust, not respect. Taking the time to get to know the people that you will have to make big asks of later in the day is one of the most important steps to reaching a resolution.

The easiest way to build rapport is to have a conversation with the participants and to listen. Legal arguments don’t qualify as a conversation. It is important to probe behind the legal arguments to hear both the plaintiff and the defendant’s story. In these stories are important clues to the nature of the dispute and the personality dynamics that often play a key role in getting a deal done.

Mediation EI Enhancer #2:

Spreading the Love

Some of the best mediators are the ones who consistently stay positive, encourage participants, and compliment them (and their lawyers) along the way. These of course are all emotional intelligence staples, yet too many mediators overlook these or ignore them altogether.

I was part of a mediation recently (as a litigator), where the mediator didn’t offer a single word of encouragement or extend a compliment to the folks in our room the entire day. Assuming this went on in the other room as well, no wonder the mediation ended without a settlement! More importantly, the mediation was a miserable experience. We’ll never use this mediator again. But this mediator is not alone. Other mediators might sprinkle one or two compliments and words of encouragement in an all-day mediation in an effort to be likable, but they miss a lot of opportunities to praise and encourage the participants for a good brief, good argument, good policy, good contract, nice hair, good taste in mediators, good choice in counsel—really anything….

You don’t have to be an emotional intelligence expert to know that a mediation that is focused primarily on negative reinforcement or on critique is not going to set the table to get a deal done. As lawyers many of us have been trained to keep the emotions out of a dispute or legal problem and to objectively evaluate the facts and evidence. While objectivity is important, ignoring emotions is not the same as effectively managing them. Everyone, even lawyers, are emotional beings driven far more by emotional dynamics than we like to let on. A healthy dose of encouragement, empathy, and authentic praise can go a long way in mediation.

Giving meaningful compliments is one of the easiest and simplest things that mediators can do to improve their chances at settlement and their performance. But apparently it is very hard for lawyers to give compliments. And I kind of get that. Many of us are skeptics or ultra-competitive—or maybe a little insecure. This just means we need to work on it and be mindful because it won’t come naturally. And hey, the profession and the world could use this anyway.

Mediation EI Enhancer #3:

Managing Time

Time is money of course, but managing time in mediation is more than that. It is a courtesy. As lawyers participating in mediation we either bill by the hour or have to justify a contingency fee by some measure of time spent. Generally speaking, the lawyers don’t care that much if the mediation goes all day or goes into the night. As a result, lawyers and mediators can be desensitized to the length of time mediation takes.

The non-lawyer participants on the other hand are very much aware of time spent in mediation and are not accustomed to spending all day in a legal meeting, much less a day-long videoconference meeting. Time matters for these clients, and a failure to manage or be respectful of a person’s time (especially when they are paying one or more attorneys hundreds of dollars per hour for their time) is insensitive. Simply put, being respectful of others’ time builds trust, while mismanaging time undermines trust.

While this concept may seem simple, it is amazing to see how many five-figure mediators completely squander and mismanage time. There are many examples of this, but a more recent example was a mediation our team was involved in where the mediator started the mediation at 9:30 a.m. on Zoom and proceeded to spend over an hour with the other side without ever popping in to say hello or otherwise letting us know what was going on. For all we knew, the mediator may have been tardy or failed to show altogether. While this is an extreme example, there are many other examples where mediators leave the room for 30 minutes or more without ever giving the parties an idea of when they expect to come back. For an in-person mediation, this may be slightly less irritating if you and your conference roommates can find something good to chat about, but for a videoconference mediation, sitting on camera idling can be incredibly frustrating.

This mediation gaffe could have been remedied with a simple email or text in advance about where the mediator planned to be and when. Such oversights, however, are but a symptom of a much larger problem that most mediators struggle with, which is having no schedule at all for mediation. The mantra of many mediators is “we’ll be here as long as it takes.” While the sentiment is good in some contexts, and certainly some mediations benefit from going into extra innings, this should be the exception and not the rule. In practice, “as long as it takes” is often just an excuse to be inefficient.

The best mediators have their day mapped out with a proposed schedule and clearly communicate that schedule and adjust the schedule as needed throughout the day. Sticking to a schedule and being respectful of people’s time gives participants the feeling of certainty and confidence in the mediator and helps eliminate emotions that might negatively influence negotiations.

Mediation EI Enhancer #4:

Dual Tracking the Money and the Problems

The odds are that you’ve been at multiple mediations where the facts, evidence, and law are discussed for the first several hours of mediation before numbers are exchanged. A common mediation schedule would start with talking about the case from 10 a.m. to noon or 1 p.m., then moving to the numbers in the afternoon, and then spending the rest of the day primarily negotiating the numbers. I’m not sure who came up with this schedule or approach or why so many mediators gravitate towards it, but it is often ineffective. More importantly, it lacks emotional intelligence.

A mediation isn’t a three-act play. Saving suspense or climax for the end isn’t going to lead to a happy ending. Instead, fear, distrust, and anxiety often brew during the first few hours of mediation as the parties open fire on one another about the facts and law without any context or connection to actual resolution or settlement value. The hope is presumably that once beaten and battered by all the factual and legal problems the parties will approach the afternoon number session in a more reasonable fashion. The reality, however, is that the morning cage match almost never leads to a pleasant afternoon discussion. Instead, both sides get increasingly irritated, frustrated, and anxious about where things are headed throughout the morning and by the afternoon are ready to load their numbers gun with their highest and lowest numbers, respectively, to really teach the other side that they mean business.

Unless submission is the desired outcome, there’s no emotional or relational value in starting the mediation with a two-plus hour blindfolded boxing match. The emotional and relational damage done does not set the stage for fruitful negotiations in the afternoon. There’s no real reason that monetary negotiations cannot proceed on dual tracks with factual and legal discussions. Moreover, the parties often come into mediation with set numbers (often ridiculous ones) that they plan to reveal in the first round of numbers negotiations, regardless of anything they hear in the first half of mediation. This in turn leads to what is often an emotional letdown in both rooms when, after having shared all their strongest arguments for several hours, they are met with a very high or low offer that isn’t connected to any of their advocacy.

Combining legal and factual discussions with numbers negotiations is a safer alternative for maintaining healthy emotions throughout the day.

Mediation EI Enhancer #5:

Shutting Up and Listening

Seeking to understand, empathizing, and listening to others are all important emotional intelligence tools that are often sidelined at mediations. How many mediations have you been at where the mediator comes in and basically regurgitates arguments from the other side and dumps on your case and then goes into the other room and presumably does the same thing? This eat and regurgitate model often goes on for several hours at the beginning of the day. It might work for baby birds, but this approach leaves most people sick to their stomach and soured towards settlement.

The best mediators are often the ones who ask a lot of questions, seek to understand, empathize, and then work towards a solution. Unfortunately, this emotional intelligence skillset can be hard to find. A mediator is a conciliator—someone who brings parties together and finds the common ground. This is best achieved through careful questions, validation, and suggested solutions.

A mediator who is advocating for a deal is just an overpriced lawyer. Parties to a mediation already have a high-priced lawyer who is telling them the strengths and weaknesses of the case and what it is worth. They don’t need another lawyer with another expensive opinion. They need a negotiator to help them get a deal done. Too many mediators spend too much time trying to advocate, persuade, and convince instead of listening, asking questions, and trying to direct the participants towards a settlement solution.