By Mary Pat Benz
The popular game show “Family Feud” has been on television since 1976. It continues to entertain viewers today–sometimes several times a day–challenging teams of family members to guess how one hundred audience members answered several questions about topics of general knowledge.
Imagine a game show where a team of lawyers and mediators guess the most popular answers that would be given if mediation clients were surveyed on the following question: “What are your pet peeves about private and court-annexed mediation?” This imaginary game is not likely to become a hit TV series, but the exercise may help to solve a few real and perceived problems with mediation.
Here are my best guesses about what the top three client answers may be, as well as some thoughts about how to address them.
SURVEY SAYS:
1. MEDIATION IS TOO EXPENSIVE.
At this time in the imaginary game show, the host says with great gravitas: “Folks, ‘Too Expensive’ was the Number One answer.”)
Mediation certainly adds expense to already costly litigation. But “too expensive” ordinarily means more than just “high priced”. The phrase “too expensive” invites a comparison of price versus value.
On the “price” side, the mediator’s hourly rate may seem high, but the fee is shared among two or more parties. Care can be taken to assure that the cost of mediation pre-work is kept to a reasonable minimum. For example, written statements prepared for submission to the mediator may consist of pleadings or motions already filed in the case, with a brief memo explaining key issues, such as litigation status, expected trial date, settlement history, summary judgment potential, and other issues of importance to the mediator. Telephone conferences with the mediator, either with all counsel and or simply ex parte, may help to get the in-person mediation session off to a better start. Further, counsel can often work with a mediator to reduce expense through flexible or flat fees based upon case value.
Keeping actual expense in check may not solve the problem of client perception, however. How can advocates and mediators demonstrate the value of the process? Here are a few items on the “value” side that are often gained, even in unsuccessful mediations:
- Free Discovery. It is common in commercial cases that parties will voluntarily exchange important documents‒on the spot‒to show confidence in their case. And in caucus, the mediator is often able to get answers to the parties’ questions about the documents or other case facts.
- The opportunity to observe an opponent’s nonverbal communication. For example, with Party A’s consent, the mediator disclosed in caucus with Party B, that Party A had been in contact with Mr. X, a former employee of Party B, and that Party A expected to depose Mr. X soon. The mediator observed the instant visceral reaction of Party B’s manager to this apparently troubling news. Even assuming that the manager’s reaction will not be directly disclosed by the observant mediator to Party A, the mediator has gained useful information that will likely affect the course of the case. Would that powerful nonverbal statement have occurred outside of mediation?
- Opportunity to meet and talk with the opposing party, not just counsel. Such opportunities are rare in litigation. The face-to-face meeting of opponents, in a relatively non-adversarial setting, can be helpful even if the dispute is not resolved in the mediation.
Finally, what is the “value” of the ultimate prize, a mediated settlement? The goal of the advocate and mediator is to help the client decide whether needs and interests are best served by a negotiated settlement‒or by the other alternatives to settlement. In mediation, the client will learn realistic estimates of pre-trial and trial costs, as well as the inevitable non-monetary costs involved in keeping any litigation alive. Many clients will be attracted to the immediate relief from the stress of ongoing litigation that will hopefully follow from settlement. When mediation forces clients to think about these things, it is a very valuable process.
2. THE PARTIES DO NOT PARTICIPATE IN GOOD FAITH.
The legal problem of “good faith” has generally been resolved to avoid the need for courts to make decisions about a party’s state of mind. Thus, courts typically require that parties and their counsel show up at a scheduled in-person mediation session and to participate in some, often minimal, way. In legal terms, good faith does not require a party to make an offer to settle. See ABA Resolution On Good Faith Requirements For Mediators And Mediation Advocates In Court-Mandated Mediation Programs (2004).
But a client’s perception of bad faith is likely to be different from a court’s view. When the opposing party’s conduct does not quickly demonstrate a real intention to compromise, clients readily charge “bad faith.”
Advocates and mediators should be mindful of negotiation strategies and their potential effect on clients who are not knowledgeable about negotiation. For example, an individual client facing an experienced corporate representative may feel disadvantaged no matter how the representative behaves; that feeling can be exacerbated by the company’s apparent reluctance to settle.As another example, the perception of bad faith arises when one or more hard negotiators meet in an early joint session, a procedure that often leads to anger on the part of the clients. Accordingly, many counsel and mediators discourage early joint sessions, hoping to prevent negative emotions from taking hold of the negotiations.
Advocates who know their opponents well, can sometimes prepare their clients for expected negotiating strategies that seem to be bad faith. Likewise, mediators will try to distinguish true “bad faith” from valid strategies by purposeful questioning of the parties in caucus. The goal is to give all parties as much assurance as possible about their opponents’ willingness to try to resolve the dispute.
3. MOST MEDIATORS DO NOT WORK VERY HARD TO SETTLE CASES.
What do clients want from the mediator? The words “mediator” and “medium” share a common root, suggesting both a person who is a channel of communication for others and a person who settles disputes between them. Clients may not understand the mediator’s role as “medium,” i.e., a facilitator of communication, if they expect the mediator to be an evaluator, i.e., an adviser or decision-maker about specific settlement plans.
The mediator’s work as a ‘medium” is most appreciated when the mediator constantly shares information, questions, and a sense of optimism, with the parties. The mediator’s communication role is often the key to keeping the process going. When each visit from the mediator generates a new idea for consideration by the parties and counsel in caucus, the parties may begin to see a path to resolution.
Clients’ expectations about the mediator’s work can be shaped in pre-work when the mediator explains his/her style of mediation. The Agreement to Mediate may recite the mediator’s “default” plan for the mediation, subject to the parties’ approval. Alternatively, the parties may be entitled to choose a mediator whose style better suits their needs. See e.g., Rule 2.4 of the Illinois Rules of Professional Conduct (2010), Comment [1].
In sum, there are many ways to address the three top client “pet peeves” about mediation. No, you did not win any amazing prizes in our imaginary game, but undoubtedly, there are more client “pet peeves” yet to be revealed. We hope you can guess them the next time we play the Feud.
This article originally appeared in the WBAI Spring 2015 Newsletter.
Mary Patricia Benz is an experienced Illinois trial and appellate lawyer with a practice in downtown Chicago. With more than 30 years of experience in state and federal courts Ms. Benz concentrates her practice in litigation and appeals, mediation and arbitration, and lawyer professional responsibility matters.