By Christine Masters
Conflict has erupted. You and your clients decide to attempt a negotiated resolution with a professional mediator prior to beginning litigation. What follows is a discussion of the traditional, time-honored methodologies, strategies and tactics utilized by counsel preparing for and during mediation, adding a slightly new spin based on recent developments in neuroscience, psychology, and communication. Although this article stems from my experience in employment rights, first as a litigator, and for almost 15 years as a full time neutral mediator and arbitrator, the general principles discussed apply in any type of dispute.
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It is with tremendous sadness and heavy hearts that we say goodbye to Nick DeWitt. Some of us had only known Nick for a relatively short period of time, while others have known and worked with him closely and for many years. To all, he was a warm, genuine person, and someone who was truly a pleasure to spend time with.
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For many years, I would have answered this question “no.” Now I’m a fence sitter. In the course of many years of practice as a full-time neutral, I have run across conflicts in which the parties want a solution using a single neutral who agrees both to mediate and to arbitrate. Accordingly, I have developed the ground rules for using it that I discuss here.
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In a mediation, the parties are in control of their own destiny. A good mediator can, without doubt, make a huge difference, but more so when the adversarial hats stay firmly in place, when emotions still run high and when hardball tactics are the order of the day. How much better would the process be if the litigants truly appreciated that they need something from the other side; that they need to cooperate with the other side, that they need to facilitate the other side's epiphany; and that a certain common position is best for this case on this day? (That’s the mediator’s job: to drag me kicking and screaming into a resolution. Looks better for my ego that way!)
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Mediations settle many cases, and good mediators settle more of them. But in my experience as a mediator, lawyers help mediators settle far more of them, and on more favorable terms for their clients, when they bring four assets to the mediation: their ammunition, an open mind, credibility, and their decision-makers.
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In my experience as an advocate and now as a mediator, mediation normally results in settlement on the first day of mediation when the mediator is the right fit for the case. However, the best employment lawyers want more than that. They want a very favorable settlement, and they want it in all of their cases. As one plaintiff employment lawyer explained, “I want the mediator who can squeeze the big bucks out of the corporate sponge.”
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The stage is set.
After a joint session among all mediation participants, the mediator moves into the first caucus with plaintiff's counsel and her client and spouse. After a further discussion of the issues, the mediator emerges with an opening demand - $1,675,000.
After a discussion of issues in the first caucus with defense counsel and in-house counsel, the demand is presented and they are dumbfounded. "$1,675,000! There must be some mistake," says defense counsel. "If I had known that the opening demand would be well over a million dollars, we never would have agreed to mediate. The demand is ridiculous. Offer them $2,500."
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“Pay no attention to the little man behind the curtain.” I was a trial judge for 20 years, the little man behind the curtain able to evoke great images of power through my (literally) elevated status and magnified voice. Not to mention the Darth Vader black robes. Oh ya, baby. I was it. Having spent the last seven years of my judicial career in a superior court civil independent calendar department, I had a front row seat to the human condition, and a good deal of authority to go with it. So, as I transitioned out of that role and into the ADR world of mediation, I made some interesting discoveries and some stark realizations. I wasn’t doing settlement conferences anymore. (Wow, Judge, you are perceptive). Hey, I heard that. Looking back on the world of settlement conferences and judicial hearings and forward on the world of mediation has convinced me that the house has truly dropped on my judicial career.
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