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Don’t Fear the Unknown

By Joseph S. Berman, Esq.

When lawyers agree to mediate a case, one of the first issues they face is choosing a mediator.   They exchange names of potential neutrals, looking to secure an “advantage” in the right person.  One criteria is often whether a mediator is supposedly a “defense” or “plaintiff” attorney.  I believe that this approach is misguided for several reasons. Taking a broader view of mediation can assist lawyers in settling a case.

In my experience, good mediators leave their advocacy at the conference room door.  We recognize the difference between advocating for a particular position and neutrally trying to settle a case.  Our incentives are different.  As lawyers, we try to obtain the best result for our clients.  As mediators, we want to bring both parties to a resolution that they control, and which is not left to a judge or jury.

More specifically, as mediators we bring a unique perspective to a case.  And, this is why I believe that a bias for or against mediators with a perceived viewpoint fails to recognize what we bring to settlement negotiations.  For example, I have spent most of my legal career on the “defense” side of civil and criminal litigation.  Often, I am hired by insurance companies or self-insured defendants to represent them in civil litigation, coverage disputes, and cases of professional liability.  Plaintiff’s lawyers may not select mediators with this type of background out of a perception that I will “side” with the defendant.

I think that the opposite is true.  In a mediation, I can speak candidly and sympathetically with the defendants, including insurance company representatives, about the strengths and weaknesses of their case.  As a “defense lawyer,” I can speak persuasively from my own experiences.  Indeed, I can be an effective advocate for the plaintiff’s position.  Since I have defended, tried and appealed hundreds of cases, I can bring that perspective to the case and its settlement value.

Lawyers who believe that a mediator will “agree” with one side, or advocate for a particular position, are missing out on the most important part of mediation.  This view ignores the unique and critical role that mediators play.  A mediator is not an advocate.  Mediators don’t care who wins.  Our objective is to settle the case.  Our means is our ability to show each side the benefits of compromise.  Often, this includes being relentlessly honest about the pitfalls of not settling.

For example, think of a case where an insurance adjuster believes that the plaintiff is malingering and exaggerating his injuries.  An effective mediator will acknowledge these arguments but point out that they don’t always prevail at trial.  By speaking from personal experience, the mediator may be able to cause the adjuster to see a different viewpoint.  And, because the mediator is a “defense lawyer,” he will have more credibility with the defendants.  He can provide a valuable service to the plaintiff.  Similarly, a lawyer who represents the defendant at a mediation may want to consider using as a mediator a lawyer who typically represents plaintiffs.  The “plaintiffs’ lawyer” can speak convincingly to the plaintiff about the risks of going to trial, the value of a settlement, and the advantages that defendants often have in terms of resources.  In other words, an effective mediator can be an articulate proponent of your position, particularly if he or she has credibility with the other side.

This outlook points to a larger issue in mediation.  It’s an issue that lawyers often forget or ignore.  As I mentioned above, the objective of mediation is very different from courtroom advocacy.  Obviously, when lawyers negotiate a settlement, they want to achieve the best result for their clients, whether it’s monetary or other terms.  They same applies to mediation.  However, when litigants agree to mediate, they agree to compromise their positions.  They must be open to listening to different views.  The goal, ultimately, is to resolve a dispute on terms that they control.  Mediation is not a zero-sum game.  Just because one side achieves a good result (whether on a specific point or in the entire case) does not mean that the other side loses.

It’s a very different dynamic than trying a case.  I think that the lawyers who succeed at mediation are those who are best at listening.  This is different than courtroom advocacy, where the lawyer’s skill at speaking or writing is most important.  It’s also important to appreciate the motivations on the other side of the case.  A good mediator can do this, regardless of his or her experience as an advocate.  The best mediator for your case is not the person who you think will agree with your position and argue for it.  As a lawyer, you should be able to handle that yourself.  Instead, the best mediator is the one who will encourage both sides to listen.  The side that may need this the most may be your own.