This article, written by attorney Dave McGrath, was originally published by Seacoastonline and can be found here.
Businesses, organizations and individuals often find themselves embroiled in litigation or navigating conflict that leads to litigation. Frequently, whether before a lawsuit commences or during a lawsuit but before trial, lawyers and courts encourage resolution of these disputes through mediation because mediation is relatively inexpensive, eliminates the inherent risk of litigation and allows the parties to retain control over the outcome. An important key to a successful mediation is the selection of a quality mediator.
Mediators do not decide factual or legal issues; they don’t make rulings; they facilitate resolution of disputes. Good ones can be extremely helpful in enabling parties to avoid or stop expensive and risky litigation. There are mediators who inspire confidence in lawyers and their clients. With these skilled mediators, disputes that seem unresolvable frequently settle. We recognize and appreciate helpful insights offered by the experienced mediator through her adroit questioning and careful listening. In these instances, we sense a skilled and determined mediator at work, helping to move a recalcitrant client or opposing party. Then there are disputes that should settle at mediation but do not. In these instances, we observe a mediator who gives up too soon, is not fully engaged during the process and otherwise does not understand the interpersonal dynamics.
During many years in the trenches, representing both plaintiffs and defendants, I have noted a few essential attributes of highly effective mediators:
Good mediators don’t give up.
At one mediation located in a midwestern state chosen only because it offered a compromise distance for all of the involved parties, the mediator worked tirelessly for three days. At one point toward the end of the third day, one party packed up and walked out. We watched and did the same. The mediator was nonplussed. While we all considered the marathon mediation finished, he remained optimistic. He quickly arranged for a room at the airport; instructed all parties to meet there; and then worked for several hours at the designated room at the airport, helping the parties to settle the case.
In contrast, at another mediation outside of New Hampshire a highly touted, but ineffective (at least that day) mediator was seen working on other matters and reading unrelated material, apparently convinced the case would not settle and was not worthy of his full effort. The case did later settle, in spite of the enervated mediator.
Find a mediator who is committed to the cause.
Good mediators are calm under pressure.
Imagine the following: before the mediation has begun, the C-level representative of one party leaves with the C-level representative of the opposing party. The lawyers search but cannot find the party representatives. Some minutes later, one of the party representatives emerges from the emergency exit stairwell looking extremely stressed. He explains to his lawyer that the opposing party invited him there, suggesting they settle the dispute with their fists, as boxer Jake Lamotta would. While neither party actually reenacted Raging Bull in the stairwell, it was a close call and one that would justifiably put an immediate end to the mediation. The highly capable mediator kept her cool and first focused on a obvious ground rule that parties need to feel safe and protected in a mediation. After moving the parties to different floors in an office building, she shuttled back and forth until midnight. At all times she was calm and confident, which had the beneficial effect of calming everyone.
Find a mediator who does not get rattled.
Good mediators understand people.
At most mediations, there is a lot going on. The facts and law command our attention, but the interpersonal dynamic is often just as important.
At times parties are not entirely forthcoming with the mediator. Sometimes parties even keep some thoughts from their lawyers. The other interested parties and lawyers have their own issues, and everyone is trying to communicate something through the mediator for some intended effect.
We are always looking for subtext and hidden meaning. A good mediator understands this and is able to get a reliable read on the cast of characters. She seems to know instinctively, for example, that my insurance adjuster is inexperienced, feels insecure, and is throwing his weight around as a result. So, she spends more time developing a rapport with him.
Or, she knows exactly how to deal with the grandstanding lawyer who reveals at the outset that he has a 4 p.m. “hard stop.” She takes his “hard stop” instruction seriously, of course, but she keeps working diligently, knowing that progress is the best antidote to impatience.
She might even sense a divide between two business partners or spouses in the same room and through respectful communication and real connection find the necessary common ground that leads to settlement. She observes everything, she listens intently and she thinks actively about the people, their motivations, and their interests.
Find a mediator who understands people.
We are fortunate in New Hampshire to have so many good mediators from which to choose. Parties and their lawyers spend countless hours during litigation analyzing thousands of documents and deposing even peripheral witnesses in the hope of finding something that might lead to a better outcome. Parties and lawyers should apply that same discipline when selecting a mediator. If we select a mediator who won’t quit, won’t get rattled and won’t miss the key personal dimensions often at the heart of a dispute, it often leads to a good result for all parties.