By Kyle Johnson (c)
Not all mediators have the same style in conducting a mediation. There is no set mediator formula that is followed by all. The mediator’s personality and background are very much part of the style. That should be no surprise to students of human nature but to someone unfamiliar with the mediation process it might come as a bit of a shock to learn that the mediator's style during the mediation greatly affects the likelihood of success. This particular blog will focus on several of the different mediator styles and how they might affect the outcome. This blog assumes that the circumstances of the mediation are that parties to a legal dispute have been brought together for the purpose of arriving at a settlement, the parties’ caucus separately, and the mediator performs shuttle diplomacy.
THE COURIER MEDIATOR
One style that is frequently encountered might best be called the Courier Style. This style mediator tends to restrict his/her involvement to listening and passing messages and offers back and forth, much like a messenger going between opposing sides in a combat zone. Instead of a combat zone, there are different rooms. The courier mediator will often hesitate to argue with the lawyers for the parties or to offer separate independent opinions on the merits of the case or key issues. If the parties are highly motivated to settle and prepared to compromise, the courier will succeed. The result will be driven by offers generated by the lawyers. If the lawyers are unable to use the process to arrive at a settlement, the mediation will fail. The mediator will be of little help in that instance because of the nature of the role that he/she has had during the mediation. Unfortunately, a large percentage of mediators fall into this category and the parties involved in mediation often feel they have wasted both time and money.
THE BEST FRIEND FOREVER MEDIATOR
Another style is the mediator who wants you to know that they feel your pain. I call this style the Best Friend Forever (BFF). Compassion and sensitivity are the hallmarks of this style along with lots of direct conversation with the client. The client conversation is designed to weaken the client to the point of surrender. The client will hear repeatedly how important it is to the healing process and to other family members to reach a settlement, any settlement, so long as it brings an end to the pain of being in a lawsuit. If the other party to the dispute is also sensitive and caring, this particular style will succeed and peace will reign. If the other side is ruthless and cold hearted, the case may still settle but with only one party making significant concessions. The mediators in this category pride themselves on being able to resolve any kind of legal dispute, regardless of whether they know anything about the law involved as they focus on technique and compassion for their new best friend, the client. Caution! Feeling your pain is great as part of a funeral service but after the mediation ends this mediator best friend you have just made will never see you again and you are stuck with the settlement.
THE JUDGMENTAL MEDIATOR
You may also encounter what I call the Judgmental Style. This type comes to your mediation with preconceived opinions of how your case should settle and is not shy about letting you know them. There will be little if any subtlety in telling you and your attorney what should happen and why. Confrontational statements flow easily as your case is evaluated and dismissed by this type, all in the interest of forcing a settlement. Theoretically, this happens in both rooms but you can’t be sure. This mediator type will also impose his or her value system on your case and often make you feel bad about yourself with critical personal comments. If you are easy to scare or intimidate, this type will produce a settlement every time. Unfortunately, you have to live with the settlement and it will be one in which you as the client and party to the dispute played a very small role. As for your attorney protecting you, forget it: Why do you think this mediator was picked?
THE BROKER MEDIATOR
This particular style of mediator starts pushing for exchange of settlement offers from the first minutes of the mediation. This mediator has little interest in the story of the case or the concerns of the parties. Much like an auctioneer, the mediator seeks to start a bidding war. The client has very little involvement as the lawyers become the bidders. The negotiation is with the mediator and the parties are there mostly to nod their head yes or no in response to proposals. This approach often succeeds in producing a settlement but as a party you need to be careful not to get swept away by the process. And you need to be with a lawyer you can really trust as everything will happen quickly.
THE SYNERGISTIC MEDIATOR
Ideally, a successful mediation will end with all involved feeling that a fair result has been achieved. The mediator style most likely to attain this result is one I call the Synergistic Mediator. This style will listen to the parties and counsel, understand the case and the law that applies, and be flexible in approach. There will be conversation but it will be focused and directed to an end result. Client involvement will be encouraged. Confrontation and judgmental statements designed to intimidate are avoided while the legal positions and risks will be evaluated, analyzed and discussed. There will be a conversation between the separate rooms and real negotiation of the case will occur. Various outcomes will be explored and the parties will be encouraged to make the settlement one that they own rather than one they are told is best for them or that ignores the pressures of the situation in the interests of expediency.
There is an old saying among trial lawyers that a good settlement is one in which the parties are each equally unhappy. In my mind, that is equivalent to saying that any settlement is better than going to trial. Many mediators subscribe to both of these beliefs. I don't. In my view, the substance of the settlement and the perception of fairness are of utmost importance. If the parties are left at the end of the day feeling sick about the process and the result, only the mediator and the attorneys will be satisfied. They get paid and go home but the parties are left feeling angry and disillusioned, wishing ever after they had gone to trial. My recommendation is to find a Synergistic Mediator who will in most instances be the one most capable of achieving a successful mediation where a fair result is achieved.