12 ways to make your mediator work harder for you

8/9/2019 12 Ways to Make Your Mediator Work Harder for You

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Lee Jay Berman

12 ways to make your

mediator work harder for you

October 2009 Issue

The biggest mistake most attorneysmake is not getting all of the value thatthe mediator has to offer, and for whichtheir client is paying. Many attorneyswont let the mediator get a word in

edgewise, tie their hands with respect towhat they can reveal and discuss in theother room, and only want to talk num-bers with them after lunchtime. Thenthey complain that the mediator is over-paid. Getting your moneys worth fromyour mediator is your job. You have todig, prod and push to get everything thatyou can out of your mediator, not unlikea tube of toothpaste (that is, if you paidseveral thousand dollars for the tooth-paste and only had eight or 10 hours toget all that you could from it). Mostattorneys never get to see all of the skillsa mediator has because they never makethe mediator work hard enough to usethose skills.

Remember that experienced medi-ators have taken and even taught hun-dreds of hours of classes and work-shops in negotiation strategy, and havefacilitated hundreds or thousands ofnegotiations. Seasoned mediators haveseen literally thousands of attorneyswork their craft. That experience iswhat you are hiring when you select amediator to help with your case. Butits up to you to draw upon that talentand make that mediator work hard foryou. Accept nothing less from them.Some mediators think that they cancoast into their work with a semi-retired, carefree ease. Weed them outearly. Expect to work hard to get yourcase settled, and expect your mediatorto work harder.

Here are 12 ways to make yourmediator work harder for you. If you takeadvantage of every one of them, you willget much more out of your mediators,your mediations, and your settlements.

1. Voir dire your mediator

While much has been written abouthow to select a mediator (mediationexperience, references, personality, styleand subject matter experience), there is

no prohibition on giving a prospectivemediator an oldfashioned job interview.Attorneys who fail to do their due dili-gence in selecting their mediator are notputting their clients (or their own) inter-ests first. Unlike arbitration, the media-tion process encourages and relies uponex parte communication, and offers theopportunity to speak directly to yourprospective neutral in advance of select-ing them.

Before investing a full day of yourtime and your clients, including all thepreparation, consider taking the fullest

advantage of this opportunity: to makethe mediator work to assure you that youwont be embarrassed in front of yourclient by selecting him or her, and alsofor you to build that critical rapport as afirst step in connecting with the media-tor, even in advance of their receivingyour brief. In addition to having theopportunity to interview your mediatorand survey them regarding their experi-ence and their style to make sure yourechoosing the right mediator for this par-ticular client and case, you also have theopportunity to make a credible, early

impression. Your time is too valuable,and good clients are too scarce, to riskhaving a bad experience in mediation.The chances of this can be greatlyreduced if you make the mediator workfor you before you have even agreed touse him or her.

2. Put them to work early and often!

Some mediators will not arrangepremediation calls (either with all coun-sel or individually). If your mediatordoesnt call you for a premediation call,

then you can andshould call them. Bendtheir ear. Take advantage of this secondopportunity for ex parte communication,and talk the case over with them. Gobeyond arguing your case. Ask them

affirmative questions, to see if you canget them to agree with you. Ask whatwould be most helpful for you to includein the brief. Make sure they understandyour professional experience, yourclients credibility as well as your theoriesand arguments. This is also an opportu-nity to tell the mediator in a private con-versation about any issues you might beexperiencing with opposing counsel, youradjuster or your client, and anything elseyou would like them to know while youhave them alone (for a second time). Notonly is this fully allowed, mediatorsencourage it.

3. Brief them well

Require your mediator to read andunderstand the case like you do. Ofcourse, this will take you distilling itdown into digestible form. Give yourmediator a chronology. Dont get excitedand jump to the good parts first. Tell thestory the way it happened from start tofinish. Give dates and time frames. Then,avoid repeating, avoid bold, italics andexclamation points. Your outrage doesntpersuade a mediator; your facts must.Most mediators you will be using have

seen hundreds of cases, if not over athousand. If your facts dont stand ontheir own, elaborate language and punc-tuation only draw the mediators atten-tion to that.

Bad behavior by bad actors does notrequire emphasis. Seasoned mediatorscan see a case developing. They can seeit crescendo, they can judge liability andevaluate damages if they are laid out inan organized fashion, but more impor

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By Lee Jay Berman continued from Previous PageOctober 2009 Issue

tantly, they also understand what you aresaying in between the lines. Any media-tor who has been mediating for 10 to 15years has read thousands of briefs andcan read very clearly what you are saying(and not saying) about your client, youradversary, opposing counsel, your case,and your settlement posture without youactually having to say it directly. This isthe best reason not to let your firstyearassociate write your mediation brief.

Mediators really do form opinionsabout attorneys, especially ones who arenew to the mediator, by their writingprowess. If you had your associate draft

your brief and you signed it, you havecommunicated to the mediator thateither you do not write very well or thatthis case is not important to you. Youundermined your credibility before themediation has begun. A wellcraftedbrief, threaded throughout with covertinformation, is more important than yourreputation because it is real to the media-tor. It is what is in the mediators handsbefore the mediation. And, if you tell themediator your confidential thoughtsregarding settlement in a private brief,you can shave hours off your mediation

time.The same advice applies for telling

the mediator about recent settlement dis-cussions. Nothing is a bigger waste oftime than getting almost to lunch timeonly to hear for the first time that thenumber just put on the table was offeredlast week in direct settlement, and thatthe last couple of hours have been awaste of time. Write well and put yourmediator to work long before the media-tion begins. Work harder to pass alongsubtle information, prepare your media-tor privately, and give them what you

need them to know to help you out. Butexpect them to learn everything you spellout, and if they miss it, make a note ofthat.

4. Arrive early and meet with themediator alone

Get to the mediators office earlyand ask if you can talk with the mediatoralone before the formal mediationbegins. Ask questions, clue him or her inon client or adjuster issues, and connect

if you have not met before. A good hand-shake and three or four minutes of goodconversation start the day off on theright foot. Then, bring the mediator overto meet your clients. Introduce them andfacilitate a short, light conversationbetween the two of them. This can rangefrom, Marge, tell the mediator how yourback is feeling today to Turns out youand Jim both went to UCLA! This givesyou two brief moments to take the medi-ators temperature (and pulse, if neces-sary) and let him or her take yours andyour clients. Doing this allows everyoneto become humanized, look into each

others eyes, make a little small talk andshed the armor of playing the roles ofattorney, client and mediator whenyou sit together. When the attorney andclient are on a more human level withthe mediator, it makes the mediator workharder because they cannot simply con-vey numbers to you. And human naturedictates that it is harder to break badnews to people we like, so in some cases,this can be a negotiating advantage.

5. Enlist them as a strategic partner

Bring your mediator around to your

side of the table literally. When youhave them alone in your first private ses-sion, enlist their help and draw themaway from neutrality and into partialityby asking them how they would play yourhand, if it was theirs. Acknowledge yourcases weaknesses, then ask them, Whatam I missing? What do you see that I amnot seeing? How would you oppose me ifyou were on the other side? What wouldyour opening argument be? Make themediator work harder by working up thecase with you, and then see if you canlure them into working with you to craft

a settlement strategy for the day. Be care-ful not to answer your own questions. Ifyou ask the mediator a pointed questionabout case flaws, value or strategy, makesure you get their answer. In these keymoments, whoever speaks first, gives in.If your mediator is on the fence aboutoffering opinions, wait them out, pressthem, and if they wont give you theirthoughts about what you should do, thenask them to play the other side and tellyou what they would do if they were the

other side. Use the mediator like youwould a colleague you might enlist tohelp you evaluate a case.

6. Make the mediator respond toyour offers first

Use your mediator as a soundingboard. You deserve to know what themediator thinks of each offer before heleaves the room to present it (dontaccept politically correct neutral speakhere), and how he thinks the other sidewill respond to it. If you really want toput him on the spot, make him tell youwhat kind of reciprocal concession he

thinks you should be able to expect fromthe other side before he leaves the roomto deliver the offer. That will put himunder the gun to try to achieve the con-cession he told you to expect when he isin the other room. Consider his feedbackand be flexible to it. Remember, yourthird, fourth and fifth offers dont mat-ter! They could be anything, as long asyoure getting the movement you wantfrom the other side.

So, if the mediator feels better aboutone number over another, it is best to lethim go with the number he feels good

about and sell it sincerely, than to sendhim with one that he doesnt like and hasto try to hide his raised eyebrow when hepresents it.

One strategy Ive seen that reallyworks well is to give the mediator twonumbers, either of which would beacceptable to you, and ask the mediatorwhich number he likes better. If he picksthe lower of the two every time, then callhim on it. An honest mediator will tellyou when your contemplated move is toolarge. If you havent ever heard that froma mediator, then you are not working

him hard enough. Think about it howmuch do you really learn from a media-tor if you argue with him and win in eachround? By giving them two numbers, youget to learn about them, how much youcan trust them, and whether they arereally paying attention, rather than sim-ply shuttling numbers. As a master strate-gist, these are the things you really needto know for later, when the negotiation isgetting down to real money. You have to



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know that when they walk into your roomand say, Thats really all there is. thatyou can trust them, and if you haventlearned about them during the media-tion, then you dont really know howmuch you can trust them.

7. Make them explain your offer com-pletely

Naked offers may sound sexy, buttheyre really just bare. A fully dressedoffer explains the reasoning behind it,the thinking that went into it, the analy-sis and the message that is conveyedalong with it. You can write this down:

The intent of any offer is more importantthan the content of that offer. It is alwaysmore important, with every offer, that theother side knows your intent. Your offeris a message to them, but if you sendover a naked number (or have a media-tor) that only says, Theyre at$850,000, then you leave the other sideto make up their own story about you,your offer, your strategy and your intent.

Take control of the other sidesimpressions by filling in the gaps forthem and insisting that your mediatorconvey the entirety of your meaning,

complete with the nuance you intend.This is why your mediator needs to behighly articulate, expertly nuanced anddeeply attentive to you and your client. Iftheyre not getting your message or seemonly interested in your naked offer, thenask to speak to opposing counsel andconvey it yourself.

You should never feel handicappedby a mediator who cant convey yourmessage the way you want it conveyed.Additionally, make sure that your media-tor raisesall of the issues relating to set-tlement long beforeyou start to reach the

numbers. Mediators who take their eyeoff the ball can leave you arguing withopposing counsel about settlement termslike confidentiality, release language, tax-ation and other deal terms at the end ofa mediation when you thought you hadagreement because you agreed on a num-ber. Make sure they are on top of theseissues early on and doing their job toflesh out all of the relevant issues. In fact,doing so can sometimes take the focus offof the numbers at a strategic time in the

afternoon when the negotiation needs achange in focus.

8. Have them be your eyes and ears

While there is some disagreementabout the ethics of sharing the tempera-ture in the other room, I have had twovery telling instances of sitting in on amediation as a consultant to a party: onewhen my brother sued his general con-tractor, and the other when my otherbrother went through divorce mediation.When the family mediator in the lattercase came back into our room and said,She has melted down. She is a puddle

on the floor in the other room. Therewas no question about where things were,and that it was time for a new approachto bring her back into reality. In the con-struction case, when the mediator cameback and said, Shes so nervous, shecant sit down, shes pacing around theroom. If I didnt know better, Id swearshe was on coke! Knowing this allowedmy brother to make more informedstrategic decisions about the size andtiming of his next offer.

If you are in one room for the major-ity of the day, you do not get to see first-

hand whether the other side is frustrated,bored, wearing down, boiling over or atthe tipping point. In some cases, thisinformation can be more important thanthe amount of their last offer. The non-verbal cues such as the attitude behind anoffer and the flexibility surrounding it willdetermine how you respond to it as muchas the offer itself. You need to know whois driving the bus in the other room,including how that may change as the dayprogresses. Expect your mediator to painta picture for you so that you can use all ofthe context to your advantage. Ask your

mediator each round or two how theirtemperature is in the other room. You willmake more informed decisions, and themediator will be of more value to you.

9. Have them give you your choices

While you may see two or threeoptions for responding in a certain cir-cumstance, your mediator may see anoth-er option or two that you do not. Askthem to review the available choices asthey see them. Remember, if youre hiring

a professional, expect that they have stud-ied negotiation theory, game theory, dis-tributive bargaining and integrative bar-gaining, and should be expert in architect-ing a negotiation that will result in a set-tlement. Put that expertise to work foryou. It is a wellknown fact that mostuntrained people negotiate in a way thatis consistent with their personality. Nicepeople negotiate more collaboratively, andcompetitive people like to play hardball.But your mediator should be skilled inboth styles and more. So, make them workfor you and offer you options before younarrow to one choice for your next move.

10. Have them tell you when enoughis enough

By late in the day, your mediatorhas spent many hours watching andgauging the patterns and ability of theother parties and their lawyer(s), feelingthe ebb and flow, watching control shiftfrom attorney to client and back again.Your mediator is best equipped to knowwhen the other side is at the end oftheir rope in the negotiation, and whenno really means no. Make themopine, and give that considerable

weight. Ask the mediator what he isrelying upon in concluding what he con-cludes, and make him show you his logicand reasoning.

11. Make them work until the end

There are some mediators who arequitters. When 5:00 p.m. comes, theywill leave, right in the middle of a medi-ation, no matter how close a settlementmay be. Do not accept this from yourmediator. No matter how big a namea mediator has, do not ever hire himagain, and make sure that every other

advocate you know hears about it if amediator quits on you. Some mediatorswill also quit when a deal is reached lit-erally sitting down in the far corner ofthe room and letting counsel, who haveopposed each other all day, try to ironout a difficult or complex settlementagreement, or worse, leaving and tellingthe parties that it is not their job to facil-itate the writing of the settlement agree-ment.



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While it isnever the mediators jobto write the settlement agreement,given that one would have a hard timesuing a mediator for drafting languagethat disadvantages their client or failedto foresee a problem down the road, itis the mediators job to facilitate the dis-cussion until the signatures are all onthe page. After all, the settlementagreement is just an extension of thenegotiation between the parties. Manyattorneys say that the most importantquality in a mediator is an iron rear end one who can sit there as long as ittakes to get the job done. Your media-

tor should be the last one out of theroom, when a settlement has beenreached, and especially if one has not(yet). Your job may need to be keepingthe mediator working until the ink is onthe paper. Do not accept less from yourmediator.

12. Expect them to work after its

over

Any mediator worth his salt will becommitted to you until the case is settled.Seasoned mediators see mediation as a

process, rather than a day. If the initialmediation session ends, make sure thatyour mediator continues to work for you.With mediators who are either so busythat they dont have the time to ade-quately followup or with those who arenot as aggressive as you would like, youmay have to prompt them to call theother side. There is no shame in callingthe mediator if you havent heard fromhim or her for a few days after an unsuc-cessful mediation and prompting them tocall the other side with a routine followup call (rather than indicating that youcalled them first). If your mediator

required a jumpstart, you can certainlyprovide the motive power, as a last resort.Ideally, you want your mediator toremain tenacious after a mediation ses-sion that didnt end with a signed settle-ment agreement, and in some cases, youmay have to initiate that conversation.

Conclusion

In these economic times, attorneysare paying more attention to mediatorsfees. Consider that focusing just on feesis a lot like buying a car based solely

based on its price, without ever askinghow big the engine is or what options ithas. If you are making your mediatorwork hard in all of these ways, you willget your clients value for every dollar.Now that you have these 12 ways to makethem work harder for you, you shouldhave much better results in your media-tions.

Lee Jay Berman began as a full-timemediator in 1994, successfully mediating over1,300 cases in his 15 years. He mediatesprivately as well as through the AmericanArbitration Association. He is a Fellow with

the International Academy of Mediators, aDiplomat with the California Academy ofDistinguished Neutrals, was Mediator of theYear for the U.S. Bankruptcy Court in 2006,and was named to the Daily Journals TopNeutrals in 2008. Also a prominent trainer inthe field, he founded the American Institute ofMediation and was Director of PepperdinesMediating the Litigated Case program from2002-2009.

12 ways to make your mediator work harder for you

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