By: Donald L Swanson
Many years ago, I’m in a multi-party mediation where my client is one of the smaller-fries. Here’s what happened in that caucus-only mediation:
- My client and I have been sitting in a conference room, alone, for about four hours, when the mediator makes his second appearance in our room, tells us what the settlement is going to be, and expects us to say, “Ok”;
- The settlement terms are a far cry from what we had explained to the mediator we were willing to accept, but my client ends up going-along to get-along; and
- I’m furious that the mediator ignored everything we had to say and pressured us into a settlement we did not want.
From a settlement-result perspective, that mediation of long-ago was a success. But from a professional perspective for my client and me, it was a dismal failure—and I’ve never used that mediator again.
But that’s life in mediating civil lawsuits.
ABA Mediation Study
Back in 2008 the American Bar Association established a Task Force to study mediation. What follows is from the Final Report of that Task Force [Fn. 1].
Here are a couple conclusions from focus groups and surveys conducted by the ABA Task Force on mediation:
- “Evaluative” mediation occurs with great frequency in civil cases and is the style of mediation that lawyers “overwhelmingly” prefer; and
- Large percentages of mediation users desire and expect a mediator to “pressure” the parties toward settlement—but not engage in “coercion” or “intimidation.”
The ABA Task Force describes such conclusions as “ever-controversial” and “something of a land mine.”
The controversy arises, presumably, because mediation theory focuses on the foundational values of mediator neutrality and party self-determination: a mediator’s evaluation offends both of those values.
While such conclusions are controversial, they are most definitely not surprising. That’s because there is no one else in the mediation, beyond the mediator, who can move the parties toward settlement.
I’ll try to explain:
- Mediations in civil cases tend to be in caucus format exclusively—i.e., the parties are ensconced in separate conference rooms throughout the mediation and never see or speak to each other, except for (i) in and around toilet areas, and (ii) during an opening joint session—if one occurs;
- Mediating parties tend to provide their mediation statements directly to the mediator as confidential information that’s not to be shared with the other side—in other words, each party is trying to persuade the mediator (and not the opposing party) of the merits of its case;
- Each party expects the mediator to “pound on” the other side: i.e., to show the other side the errors of their ways and their need to move substantially for a settlement; and
- Mediators in such circumstances commonly begin the mediation with an entirely-neutral and non-evaluative position . . . but as the mediation progresses and impasse appears likely, the mediator moves toward an evaluative and pressuring mode—because there is no one else who can.
That’s how it works.
Results from a caucus-only mediation are these:
- Theory (i.e., mediator neutrality and party self-determination) gives way to the practical need for achieving a settlement;
- Lawyers come to expect and demand that their mediators “pound on” the other side to produce a settlement—because there is no one else who can fill that role;
- Mediators are obliged to (and do) accommodate those demands—it’s built-in to the system; and
- Parties blame the mediator for inadequately (or in-artful) “pounding on” the other side, when a settlement in their mediation proves elusive.
Such results represent a disconnect between mediation theory/ideals and mediation practice.
The caucus-only approach to mediating disputes in civil cases creates a disconnect between theory and ideals on the one hand and actual practice on the other.
And the question is whether the disconnect is acceptable. Thus far, lawyers, parties and their mediators in civil lawsuits are clearly answering that question in the affirmative.
Footnote 1. Information in this article is from the 2008 “Final Report” of the American Bar Association’s Task Force on Improving Mediation Quality.
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Don, the curse of caucused mediation afflicts Australia also. There are some solutions:
1. Education. Educate the parties and their lawyers that what drives mediations is uncertainty. Uncertainty as to who will prevail in the litigation, arbitration or tribunal hearing that will ensue if the dispute is not resolved at mediation. Evaluative mediators, especially retired judges, often don’t realise the value of uncertainty.
The last thing you want is a mediator who discharges the uncertainty as to outcome by expressing her/his opinions on who will prevail at trial. That turns the mediation into a poll on whether the mediator’s views are correct and if, as usually happens, the parties split 50/50 on this issue, where do you go from there?
Far better to have a mediator who generates, fosters and enhances uncertainty. Such a mediator can legitimately say things like, “I see that you’re voicing diametrically-opposed views on the likely outcome at trial. Well, it’s not part of my job to predict who’s right and is going to win at trial. Who cares about my opinions anyway – I’m just the mediator? But it is part of my job to observe that you can’t BOTH be right – and the only way to find out definitively who’s right is to go to trial, which will guarantee that one of you will be bitterly disappointed with the outcome. So, if you want the winner-takes-all outcome that you’re advocating right now, you’ll have to risk losing and getting the loser-loses-all outcome instead. That means, doesn’t it, that both clients will have to compromise their claims in order to settle this mess. So, let’s start talking compromise.”
What we call “reality-testing” is, if you think about it, a systematic attempt by the mediator to generate and enhance uncertainty in the minds of a a party and her/his legal representatives.
For more detail, see my post, “Doubt drives mediations: Treasure it!” at https://t.co/Tmw4afDP76?amp=1
2. Hold a preliminary conference at which you can quiz the mediator on their style and weed out excessively evaluative mediators.
3. In extreme cases, where a mediator who promised to be facilitative turns into an evaluative monster, fire the mediator and refuse to pay her/him. Word gets around amazingly quickly!
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Thanks, Robert, for your thoughts on this subject. Much appreciated!