Mandatory Mediation: How Litigation Counsel Can Participate and Thrive

Some commercial disputes end up in mandatory mediation. A court may send the parties to mandatory mediation. A contract’s dispute resolution clause may mandate mediation before arbitration or lawsuit. In these instances, parties and their litigation counsel may feel like prisoners of the process. They may emotionally analogize mandatory mediation to their experience as a student in high school: endure and survive rather than participate and thrive. (Apologies to readers who liked high school.)

The survival skills from high school likely do not apply in a productive mediation, especially where the parties are involved in mandatory mediation. The tactics used to disarm opposing counsel are typically inappropriate when dealing with the mediator. In fact, these tactics may derail the mediation process.

Below are some pointers for how litigation counsel can make the most of mandatory mediation.

Mandatory Mediation is not high school detention.

Even where mediation is compulsory, mediation is not punitive like high school detention. Instead, it is a chance for a fresh-start. Savvy counsel will present the mediation to the client as an opportunity. At a minimum, the mediation is likely to teach you more about your client’s case and your opponent’s arguments. You may also be able to narrow the issues that could help to frame a settlement down the road. At best, the parties may achieve a negotiated settlement during the mandatory mediation.

Mediation is not a playground.

Counsel should not threaten to take the ball and go home. Threats to walk out on the mediation process will not allow you to learn about your adversary’s perspective, weaknesses, and any zone of possible agreement. While you will have checked the box of having participated, you will have missed out on the upside of mediation. In addition, obstructionist threats may tie the mediator’s hands. She may see the non-engaging party as failing to negotiate in good faith, often a requirement of court-annexed mediation. Advocates should consider whether their zealous advocacy may obstruct the process. Client education is again key so that the parties understand why their lawyers are behaving differently from a court setting.

The Mediator is not the principal.

Counsel should not report the opposing side’s bad behavior to the mediator with an expectation she will mistrust opposing counsel. Your mediator is truly neutral. The bad behavior report also will not lead to her chastising the other side. First, all information provided in caucus is confidential without an authorization to share with the other side. Second, the mediator’s role is not to police the other side. When confronted with a client who insists on “reporting” such information to the mediator, wise counsel will present it as a way for the mediator to understand better what makes the other side tick. The more information she has, the better able she is to break impasse.

The Mediator is not the school nurse.

The mediator strives to understand your client’s needs and interests in a confidential setting. The mediator, however, is not there just to make your client feel better. An effective mediator will allow your client to be heard, but she may also challenge your client’s beliefs and your legal arguments. The mediator’s goal would not be to scare the client or undermine your advice. Instead, the mediator is trying to unearth the client’s interests and priorities, as well as reality test the client’s positions. Counsel can assist the process by supporting the mediator’s efforts. Effective counsel should not complain that the mediator is not “on our side” or assume the mediator does not understand your case. If your client needs a different approach in the process, consider asking for a confidential sidebar with the mediator either before or during the mediation session.

You’re not running for class president.

Counsel often deliver speeches aimed at persuading the mediator that their client is “right.” This strategy may not move the mediation forward. It does not address the friction getting in the way of settlement. Often, counsel is concerned that their clients may not see them as zealous advocates. Again, counsel can bypass this problem by explaining the mediation process to their clients. There is no judge or jury, and grandstanding may further cement anchoring to unreasonable positions. Instead, counsel can more effectively engage the mediator with a substantive confidential pre-mediation submission or in caucus without merely repeating their court briefs. Your mediator really wants to know your client’s understanding of the opponent’s strengths, the weaknesses of their own positions, your client’s behind the scenes interests and goals, and settlement history.

Conclusion

Commercial litigators often have strong and valid interests for resisting mandatory mediation. They may believe their clients need to establish a track record of strength to ward off other lawsuits. In addition, they often want to protect their own reputations as strong adversaries in front of opposing counsel and their clients.At times, they feel discovery will strengthen their bargaining position and settlement can wait. When forced into mandatory mediation, it is only natural that litigators may sometimes chafe at the process.

Can a mandatory mediation be successful in spite of one or both parties not having volunteered to be there? Much like success in high school, the answer may lie in counsel’s behavior and attitude during the mediation. Litigators can be most effective in mediation if they trust the process, instead of using it. By avoiding survival tactics and preparing their mediation for the unique mediation stage, counsel and their clients can thrive in a mandatory mediation setting.

Do you have a case that might be a candidate for mediation? Have you been sent to mediation and need more information about the process? Learn more about Kyle-Beth Hilfer’s mediation practice and philosophy here.