Reflections on 25 Years of Mediating

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Reflections on 25 Years of Mediating

This month marks my 25th year mediating cases. This had led me to think back on my first mediations and what I have learned since then.

I signed up as a volunteer mediator in New Hampshire in 2000, not long after ADR became mandatory for civil cases. At that point in time, the Clerk’s office would schedule three back-to-back mediations in one day, each lasting two hours. It was a strange combination of speed dating and mediating, all taking place at the courthouse.

I have mediated a lot of cases since then, and hope I have learned a few things about the mediation process. Here are some observations that might be helpful:

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Surprising Lessons from the Switch to Online Mediation

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Surprising Lessons from the Switch to Online Mediation

Mediation is simply a tool to resolve disputes. For years, we could only visualize that tool as requiring participants to all converge at one location, face-to-face with a mediator, before they could engage in meaningful efforts to settle disputes.

Covid forced a re-invention of that process. At first, I was skeptical that online mediation could work effectively. I never would have predicted it would permanently change the world of mediation as it has. Here are three lessons I have learned.

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Reasserting Control Through Mediation

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One of the most rewarding parts of my mediation work is the opportunity to spend time with parties mired in the litigation process and talk about how they got there and what options they have for resolution.  One participant in a recent mediation wisely observed that litigation is like war and poverty:  all being characterized by a lack of control.

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Strategies for Managing Multi-Defendant Mediations

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It can be difficult to settle cases where opposing parties have strong disagreements over case value. This difficulty can rise exponentially when multiple defendants participate in a mediation, with divergent ideas about responsibility, exposure and appropriate levels of participation.

At times, disputes between different defendants can become intractable, threatening to derail the entire mediation process. If the defendants can’t even agree on how to divide up a starting offer, how can a negotiation proceed? There are, however, some creative strategies to keep multi-defendant mediations on track and headed to resolution.

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Are you Prepared for Your Personal Injury Mediation? — Plaintiff’s Case

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Abraham Lincoln once said that if he were given six hours to cut down a tree, he would spend four hours sharpening his axe. This may seem a bit anachronistic in the digital era but the essential point rings true; especially when it comes to mediation of personal injury cases.

Many attorneys see a day spent in mediation as not particularly heavy lifting: drafting a mediation statement and scribbling a few ideas on a legal pad. A day in mediation is a lot easier than taking an expert’s deposition and far, far easier than time in trial.

Comfort zones, however, can instill complacency. If we view mediation of a personal injury case as the client’s day in court, is there any room for casual lawyering? Let’s focus on how plaintiff’s counsel can prepare to make a personal injury mediation both meaningful for clients and successful.

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Finding a Seat at the Table: Allowing Non-Parties to Participate in Mediation

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We know that the presence of true decision makers enhances the quality of the mediation process and the likelihood of resolution. What if those decision makers are not parties to a legal case being mediated?

Let’s take this scenario: Husband is the sole plaintiff in a contentious case arising from an auto accident. Counsel are not playing well together and agree on little. At a deposition early on in the case, an insurance adjuster wanted to sit in and plaintiff’s counsel refused to allow this. Routine requests for extensions have been refused and the case has been adversarial at every level.

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In Praise of Brevity

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There is wisdom in the old saying “talk less, say more.” We sometimes assume in speaking and writing that if a little is good, a lot will be better. Often, the opposite is true.

When sending materials to a mediator on an important case, it is tempting to overdo it. Do you attach the three critical doctor’s notes or do you provide the entire 250-page medical chart? Do you excerpt the one paragraph of contractual language that controls or do you err in favor of sending the entire 100-page licensing agreement? Do you summarize your client’s case in 15 minutes or go on for over an hour?

I think I speak for all mediators when I suggest that less is usually more.

And on that note, I am done.

Negotiations and Love Songs: Dealing with Emotions in Mediation

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As lawyers we are trained to put the emotion aside.  We counsel our clients to look at the practical options and make good business decisions.  We try to stop the emotional tirades and move on to more familiar ground:  prospects for summary judgment, litigation costs and risk.  That is what we are good at.  What we are not so good at is understanding, much less dealing with, the emotional entanglement of these cases.

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Why Insurers Miss the Boat by not Insisting That Their Adjusters Attend Mediations

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There is a puzzling disconnect in the world of mediation.  Some insurers routinely fly adjusters across the country to attend mediations. Others seek telephonic participation wherever possible.  Puzzling further, is the practice of some insurance carriers who insist on sending an adjuster to observe a jury trial from start to finish, having earlier refused to allow that same adjuster to travel to a mediation that well might have resolved the case.

What is going on and why?

The explanation seems to trace to a contrarian attitude still found in some claims departments that mediations are a court-mandated headache that gets in the way of important work that needs to be done in the office. 

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Civility as a Negotiation Strategy

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When I teach Negotiation, I am sometimes amazed at how much I learn from the law students I am supposed to be teaching.  A good example is the perceptive observation by one of my students that “good people skills should be the low-hanging fruit in a negotiation.”  

The point is this:  While many aspects of negotiation are difficult, the seemingly easiest is just working well with others -- being polite, acknowledging opposing viewpoints, showing respect and paying attention.  These, and other active listening skills, should be a given in any negotiation, setting the stage for effective communication, information sharing and working together toward resolution.

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Trials: a Failure of Lawyering?

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In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.”  While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes.  They are a roller coaster with a propensity for ejecting riders from great heights.   

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The Law of Liaring: Truthfulness in Negotiation

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When attorneys negotiate for clients, a clash of cultures occurs.  Lawyers are bound by overriding ethical obligations of candor and truthfulness in their dealings with others.   Negotiators, on the other hand, work in arena where overstatement, "puffing," and even outright deception are often employed to achieve better outcomes. 

What can an attorney do, and more importantly, what should an attorney do when the angel on one shoulder counsels candor and the devil on the other shoulder insists: "Get the best settlement at all costs"?

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