Mediator or messenger

During the past few weeks two attorneys I greatly respect have conducted mediations for my clients. One mediator settled every single case, often in circumstances in which I thought reaching settlement would be difficult. The other attorney failed to obtain a settlement in a case that frankly should have settled without much difficulty. This had me thinking about what the first attorney did well and what the second attorney did that created (what I perceived as) a failed mediation.

While touchy-feely types treat mediation as a process in which two people in conflict achieve harmony through understanding, us more pragmatic folks see mediation as a litigant’s best chance to reach an acceptable resolution of a dispute while retaining significant control over that resolution. This is because mediation is an alternative to letting a factfinder–in the South Carolina family court system, a judge–decide the dispute. In every mediator’s mind (and in the minds of the attorneys who represent parties in a mediation) the thought must be, “what are the likely range of outcomes on each disputed issue?” This does not mean that the resolution of each issue should be within that range. One of the benefits of mediation is that a party can achieve a result better than what he or she might achieve in court on an issue of particular importance to that party. However, for this to happen, that party most likely will have to accept a lesser result than what he or she might achieve in court on an issue of particular importance to the opposing party.

“What will a judge likely do?” is the question that should drive the mediation process. This means that a good mediator is helping litigants understand how their proposals comport with likely trial results. The best proposals–the ones most likely to achieve settlement–are ones in which the mediator can justifiably tell the other side that there is a significant risk of getting a worse result–overall, not necessarily on each individual issue–at trial.

A good mediator will let a party make one-and-only-one initial unrealistic proposal. In fact, it’s good practice to allow a party to do so. First, there’s always the unlikely possibility that the proposal will be accepted or only minimally countered. Second, the response to this proposal will allow that party to see if some unrealistic goals (in the sense that these goals cannot likely be obtained from a judge) are acceptable to the other side and what benefits the other side will want in return. Finally, in allowing the party to make an unrealistic offer, the mediator allows that party to be “heard.” Any rejection of the unrealistic proposal will now be the doing of the other party, and not a mere dismissal by the mediator.

However, after the first round of unrealistic proposals, a good mediator will test all subsequent proposals against what a judge might realistically do at trial. This doesn’t mean that the proposal needs to be in line with everything a judge might do. For example, many divorce cases that would almost certainly result in a permanent periodic alimony award at trial settle with a different result. However, in all such cases, the party getting out of paying permanent periodic alimony is offering something of value that the other side could not get at trial–typically a super-majority of the marital assets and/or a greater monthly amount of lump sum alimony–in order to get out of paying permanent alimony. A second-round proposal in an obvious permanent periodic alimony case that neither offers permanent periodic alimony or something valuable (in the sense that the other party could not get that result from a judge) in return for the waiver of permanent periodic alimony is an unrealistic proposal–and frankly insulting to the other side and the other side’s attorney, as only an incompetent attorney would counsel a client to accept such a proposal.

A good mediator takes control of the mediation by requiring the parties to justify the proposals they make. The most obvious question for a litigant to ask a mediator is “what’s my risk in rejecting this proposal?” In every circumstance the answer will include the stress and expense of further litigation. However, if that’s the complete answer, only the most resource-poor or anxious litigants will accept that proposal. Thus, when fashioning a proposal, the mediator should be asking the party making the proposal what risks there are for the opposing party in rejecting the proposal. If the proposing party cannot give a realistic answer, the mediator should probably not be forwarding that proposal.

In contrast, a mediator who allows such second- (or subsequent) round proposals to be made without asking the party who makes that proposal to articulate why the other party would be at risk to reject it, stops being a mediator and becomes a mere messenger. In the unsuccessful mediation above, the mediator kept providing us proposals in which (I believed) my client was extremely unlikely to do worse at trial. The mediator could not articulate any reason my client should accept these proposals other than that judges sometimes do unexpected things. It was seven hours into the mediation before the mediator delivered a proposal that was within the range of likely possible outcomes at trial–and, even then, I suspected my client would do better on a few issues without doing worse on any. By that point in the mediation I had already fashioned a proposal–which had been emailed to opposing counsel–that (I believe) put the opposing party at significant risk of rejecting. There was no reason to respond to the other side’s first reasonable proposal when I had already made a proposal that my client could fully justify at trial.

By failing to require the other side to justify their proposals, and by being unable to articulate reasons my client should accept them, the mediator essentially turned herself into a mere messenger. My clients do not need to be paying my hourly rate, and half the mediator’s hourly rate, to have proposals run back-and-forth.

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