10 mistakes that mediators should avoid
By Peter Israel
Whether due to mandatory mediation in certain jurisdictions or parties’ general desire to find an alternative to courts and the litigation process, mediation is increasingly being used to resolve employment law and other legal disputes.
Mediation can be an incredibly useful tool to assess risk, evaluate a case’s strengths and weaknesses and negotiate a mutually beneficial settlement. Mediation may also cut down on the delays, costs and the uncertainty typically associated with our system of Justice.
The likelihood of successfully mediating a resolution significantly depends not only on the parties’ willingness to resolve, but also on a mediator’s experience and skill set, as well as that of the parties’ lawyers. With that in mind, the following list considers 10 mistakes that mediators should avoid and how lawyers can assist mediators to reach a resolution.
1. Acting as messengers
Too many mediators shuttle between the parties, only to articulate each side’s position or exchange formal offers. This approach does not add value to the mediation process. Further, it may encourage the parties to negotiate by making unrealistic demands or settlement offers in the hopes of ultimately meeting in the financial middle.
2. Judging the case or taking sides
While mediators may highlight the strengths and weaknesses of each party’s case and demonstrate evaluative reasoning in order to assist the parties to reach a settlement, they must not overreach by judging a case on its merits or advocating for one party’s position over another.
3. Arguing and being difficult with the parties
Mediation is a facilitative and collaborative process that is not well served by many litigation tactics. All parties, including the mediator and the lawyers, must anticipate how others will react to what they say and do. When the mediator sets a respectful, professional and collaborative tone for the session, others will follow suit. If not, the mediator can insist and enforce the process. The mediator must be hard on the issues, hard on the facts, but easy on the people.
4. Breaching confidentiality
One of the key advantages of mediation is that the final settlement is confidential. This is especially important to parties that don’t want the details of their case to be publicly available. If the mediator, or any other party, breaches the confidentiality of mediation, they will have violated both their contractual and ethical commitments. The legal community is a small one and the importance of one’s reputation cannot be overstated.
5. Not emphasizing the Value of Certainty
One of the biggest advantages of mediation is the ability to reach a negotiated settlement that provides certainty. Very few cases are clear cut to the extent that either side can accurately predict what a judge will ultimately decide. It follows then that if the mediator highlights the uncertainty in each room then the parties will, in most cases, have an incentive to settle the case. Mediators and lawyers should emphasize the value of certainty, particularly to parties who are risk-averse and reluctant to pursue litigation.
6. Ignoring parties’ non-legal concerns
The emotional aspect of a case may be the most important issue for an employee. In such cases, it may be important for the mediator and the other side to listen and allow the employee to vent their anger and frustration. Aside from demonstrating empathy, such an approach may reveal the true stumbling block that is preventing a settlement. On the other hand, mediators should be mindful to avoid an airing of past grievances. Mediation should be forward-looking to the greatest extent possible.
7. Not explaining the mediator’s role and approach
Regardless of whether or not the parties have previously attended a mediation, the mediator should briefly explain the mediation process and his or her role and specific approach. A mediator assists and guides parties towards their own resolution. In doing so, he or she may act as an agent of reality but cannot force the parties to settle. Lawyers may assist the mediator by preparing their clients (and themselves) prior to mediation. All parties should be prepared to listen, be creative and be solution-focused.
8. Taking trust for granted
Mediators, particularly senior ones, should never assume that being named mediator equates to being trusted. Trust must be earned and maintained – neither side should feel that they are being overlooked or disadvantaged. Mediators should demonstrate that they are intimately familiar with the relevant facts and legal principles and must never “just go through the motions.” Losing either party’s trust will significantly decrease the likelihood of reaching a settlement, as well as negatively affect future business or referrals.
9. Believing “final” offers/giving up too easily
It is not uncommon for parties to table a “final” offer. Mediators must not give up prematurely if the bottom line offer is rejected, as these offers are rarely firm. There is often a creative, mutually satisfactory solution to be had as the distance between the parties’ positions narrow. Even if the parties remain far apart, it is important to remember that unrealistic expectations are lowered gradually. Lawyers should assist mediators by being forthcoming and reasonable throughout the mediation.
10. Missing opportunities prior to mediation
In most cases, opportunities prior to mediation are missed by both the mediator and the lawyers. For example, if there are materials such as pleadings or relevant documents that would help inform the mediator about the true nature of the dispute and the important issues, these documents should be appended to the mediation briefs. The mediator may also benefit from lawyers disclosing the real issue, legal or otherwise, that is preventing resolution of the dispute. Lawyers should feel free to call ahead if they believe a specific mediation approach is needed. In short, mediation should be active and collaborative even prior to the mediation session to ensure that the mediator has all the necessary background information to increase the likelihood of reaching a settlement.
Peter Israel is a senior partner at Israel Foulon LLP.