Are mediators fungible like colas – I mean seriously, can you tell one from another, and does it really matter? Or are they subtler, like fine wines, to be paired with the right dish for greatest effectiveness? And assuming all you mediators are not interchangeable, what tips do you have for a party to select the best mediator possible for a dispute?
–L.A. Wine Connoisseur…and Litigator–
Dear L.A. Wine Snob (I say that with the greatest respect, of course):
An excellent question!
Granted I’m not a cola guy, so unlike the rant of Michael “Meathead” Stivic, I would have to agree that all colas are in fact the same. (Free Peet’s Coffee card to the first person who explains this reference in a comment!)
And frankly, but for the color, I’m not so sure most wines aren’t the same either (especially after you’ve had a few!).
However, one thing I AM sure about and it’s that mediators are not fungible…nor should we be. I don’t think a white wine with red beef will ruin the dinner, but the wrong mediator for a dispute will certainly leave a bad taste in your mouth. (Wow, now that’s good metaphoring!)
A SAD STORY
In a design patent case I had before retiring my litigation bag, we were looking for a mediator. At the time, I subscribed to the mediator-selection theory that I suspect many of you lawyers subscribe to today – “Let’s let the other side pick the mediator, and so long as he or she seems decent, we’ll go along with it. After all, since it’s ‘my opponent’s mediator,’ my opponent will be more swayed by the mediator.”
So I agreed to the other guy’s mediator, a current design patent attorney out of New York who mediated on the side. I checked the guy’s references and (not surprisingly since the names were given to me by the mediator) they checked out, so I felt this would work.
Boy was I was wrong.
The mediation was a disaster. The opposing party presented a fancy powerpoint explaining why he believed, on the law, he should win. The mediator bought into it. Before he even caucused with us, the mediator was convinced our side would lose, and then throughout the day he spared no adjectives in sharing his expert analysis with us. As we were the plaintiff in this infringement claim, the mediator used his one (and only!) trick – evaluation of the law – to try to convince my client to accept a number that would not even cover his attorney’s fees. By 5 pm, the defense, emboldened by the mediator’s oft-stated views, still had not offered a single dollar. Needless to say, the mediation was a disaster and my client, who had flown across country for the exercise, was extremely frustrated and angry. (Luckily, New York has some nice restaurants. And some fine red wine…or maybe it was white. I’m pretty sure it wasn’t a cola.)
What went wrong? It couldn’t have been me. It must have been the mediator. We just picked the wrong guy. The legal dispute was ostensibly over a design patent (and sundry related claims). But the driver of the dispute – what was really causing the problems – was the relationship between the parties. My client manufactured high-end fashion products; the defendant sold cheap knockoffs through infomercials that decimated my client’s business. The parties were pissed at each other. There was a history there and some bad blood. They were also two businessmen in lines of business that were not mutually exclusive. There were some synergies available for exploration. My client was a hot-headed Irishman; the opposing party was a hot-headed Russian. Hence there were cultural and emotional issues underlying the thing.
There was also a practical impasse. My client had already invested a lot of money in the case. He wasn’t going to settle without getting something for his investment, regardless of what this one “attorney/mediator” thought of the strength of the case.
Unfortunately, this mediator was not an expert in any of these things. He was a respected design patent attorney with some mediation training and experience. He was a one-trick pony who could look at the legal issues, evaluate them, and then share his analysis like a sledgehammer. (He was probably even right with his analysis.) He should be a federal judge for all the subtlety he brought to the process. (Apologies to my federal judge friends, but you know what I mean.)
But deal with emotion? Get creative? Look at business angles? Focus on the real cause of the impasse? Bond with a hot-headed Irishman? Understand the practical realities in front of him? This was all well beyond this mediator’s limited talents.
And it was really my fault (but please don’t tell my client that). By uncritically acceding to the opponent’s choice of mediator, I gave the opponent another platform to practice his opening statement, and subjected my client to just more of the same. By going with the guy “the other guy” wanted, I also almost single-handedly guaranteed a failed process.
RETHINKING MEDIATOR SELECTION
So clearly there has to be a better way to match the mediator to the dispute.
I think there is.
Go back to the story above. Why did it fail? It failed because we had a mediator who was really strong at evaluating design patent cases…but the dispute before him was not based on a misunderstanding of design patent law. The dispute before him was caused by more personal issues – a history of business conflicts, personal slights, cultural issues, financial realities. These two parties could have had 100% agreement on the legal issues and still it would not have settled. The legal issues that were so obvious above the surface were simply irrelevant to what was lurking below. Hence a mediator quick with the law addressed a problem that didn’t exist, and ignored the problems that did.
Had I not been locked into the robot mentality of “going with whomever you want,” I could have made a better selection. After all, I knew what was driving this case. I had lived it for two years. I knew emotion, as much as logic, was pushing under the surface. I knew the relationship between the two sometime-competitors was at the heart of the dispute. I knew a settlement would require creative thinking, dare I say “outside the box” ingenuity. I knew all of this. I just didn’t connect this knowledge to the mediator selection decision.
A BETTER WAY
We can learn from this.
Start with the premise that not all disputes are the same. While some disputes may exist as a result of a disagreement by the parties on the law, or even the facts, other disputes are driven by something else altogether. Some are driven by emotion. Some by cultural misunderstandings. Some by finances. Some by ego, the client’s or the lawyer’s…or both. Some disputes are driven by a social agenda, or “principle.” Maybe revenge is lurking under the surface. Maybe a need to establish a precedent or set a public example. Could it even be the plaintiff’s attorney’s desire to hit it big? This list could go on and on.
Even cases that look alike on the surface could be driven by completely different factors. For example, four wrongful termination lawsuits could be filed with identical complaints, and yet one plaintiff may just want a new job and is suing because he has no other option. Another may be suing to punish an alleged wrongdoer. A third may have brought the claim to save face with her family or community. A fourth may be driven by a plaintiff’s attorney’s press for cash. The driver of the conflict – and hence the impasse preventing resolution – will be substantially different in each case.
Second, despite what some people might think, mediation is more art than science, more insight and subtlety than mere message-carrying or sledgehammer-wielding. And hence, shocking as this may sound, mediators are not fungible. Even outstanding mediators will have different strengths, weaknesses, talents, specialties, styles, and approaches. Some are strong evaluative mediators (the mediator in the story above, for example). Others are terrific at dealing with emotional issues. Some specialize in cross-cultural disputes. Others really understand numbers. Some are more creative, or are better at setting an atmosphere for creative brainstorming by all the parties. Some know how to manage disputes with scores of parties and innumerable issues. Some are better at forging a personal connection with clients and attorneys and using that connection to help build bridges. Others love the negotiation game aspect of the process.
So if disputes are driven by different factors, and mediators have different strengths and weaknesses, wouldn’t a more effective and appropriate mediator selection philosophy be one that seeks to match the mediator’s strength with the true cause of the underlying conflict?
In other words, if the driver of a dispute – the impasse that is preventing the parties from finding a way out of their conflict – is emotional, wouldn’t a mediator who is strong at dealing with, and ultimately channeling and deflecting emotion be a better candidate than one who simply evaluates legal strengths?
On the other hand, if the impasse is actually caused by a fundamental disagreement as to the strength of the legal claims asserted in the lawsuit, then a strong evaluative mediator with experience in that legal field, possibly even a former judge, might be superior to a mediator who is really good at handling emotional parties.
What if the problem is not the law, but a very difficult client? A mediator who could best identify with, even bond with, that client might then be the right choice.
Is it one of the attorneys who is creating an impasse, either because he is unfamiliar with the law or is simply difficult? Then going with a mediator that person chooses may make sense.
In short, by thinking a little more strategically, and analyzing your conflict a little more introspectively, can’t you at least better identify the type of mediation skills that will best serve your purposes?
HOW DO YOU DO IT?
The first step in selecting an appropriate mediator, thus, is to turn inward – to really analyze your dispute to determine what exactly is creating the impasse between the parties. Sure there are the legal claims, and a disagreement on whether the conduct did or did not violate some law or other. But if that’s all there is, then two good lawyers should be able to hash out a fair settlement by themselves. Instead, dig a little deeper. Find that driver. Here are some possibilities:
Financial: “I have no money and no insurance” or “I need $X to save my house from foreclosure.”
Emotional: “I hate that guy and am not paying him a penny.” “I hate that guy and I’m going to make him pay one way or another.”
Attorney Ego: “I’m better than my opponent…and I’m going to prove it.”
Client Inattention: “The adjuster with authority is on vacation, again.”
Business Realities: “My cash flow is seasonal–and this ain’t the season.”
Informational: “They claim there’s a witness to the boss’ alleged demand for a foot rub, but we don’t know who it is.”
Legal: “Their theory of damages is, respectfully, hogwash.”
You or Your Firm: “I need trial experience.” “I’ve been too busy.”
Unrealistic Client: “I’ve seen people on T.V. get millions for having coffee spilled on them.” “I need justice.”
Your Opposing Attorney: “I need to bill this case a little longer…. And besides, I’m an ignorant SOB.”
Once you know what is really causing the impasse, you know what strengths to look for in your mediator.
Then make your calls. Call the providers; call your friends; check the listservs; even call your opposing attorney. Do all the things you would normally do to get the names of quality mediators. Sure, find ones that have some background in the subject matter of your lawsuit; it can’t hurt. And of course ensure your candidates are experienced and well trained. That’s a must. Include only those mediators who are serious about the profession – ones who are committed not only to continuing their own education and training, but who are making mediation their livelihood.
But then focus in on what you have determined to be the cause of the impasse in your dispute. If the problem is your own client’s intransigence, which mediator will best garner your client’s respect? If the problem is an elderly male plaintiff who believes he was fired due to his age, then which mediator on your list is an elderly male who might bond with that plaintiff? If the problem is your opposing counsel’s overbearing personality, which mediator on your list has had positive dealings with that attorney in the past? If the problem is a highly volatile mother in a wrongful death case, which mediator on your list has the calming and patient personality to deal with grief?
How do you find out? Ask. Ask your friends. Ask your colleagues. Ask for references and call them (though this tends to be less valuable than one might think). But most importantly, ask the mediator herself. Call the mediator up, explain the situation, and ask how she would handle the mediation. Any mediator worth his salt will take the time to walk through the dispute with you and share his thoughts on how he would approach the issues you have identified.
In other words, do your due diligence…but do it with a proper understanding of what you are looking for. You can do it over a glass of red wine if you want. (Or is it white wine?)
You represent a bank being sued by a 62 year old Armenian-born male for wrongful termination based on race discrimination. The plaintiff had been a successful mortgage broker, and saw himself as a pillar in his ethnic community – an immigrant who had made it big in America; so big, in fact, that he managed to get the bank to hire his son as the plaintiff’s assistant – to see Dad in action and one day take over Dad’s clients. In deposition, the plaintiff kept referring to “brokers of my caliber” or “at my senior level” were entitled to special compensation. However, the mortgage crisis of 2008 decimated the plaintiff’s practice to the point that he had not originated any new loans for 11 months. The bank had no choice but to lay him off, along with all other brokers. Unfortunately, it conducted the layoff in front of the plaintiff’s son.
The plaintiff sues under the theory that he was fired not for failing to close a loan in 11 months, but for being Armenian. His attorney is a recent admittee (also of Armenian descent) who knows the plaintiff from church. The court has ordered mediation, and the plaintiff’s attorney recommends a young white woman mediator whom he had used before in an employment case with success. The mediator is experienced and well regarded.
How do you select your mediator? Do you go with the suggestion of the plaintiff’s attorney?
Post your answer in a comment!