By ELIZABETH L. ALLEN and DONALD D. MOHR
Have you represented clients in a mediation lately? How did it go? Poorly? Don't despair, the problem may simply be that you chose the wrong kind of mediator. What passes for mediation has left a lot of attorneys, as well as their clients, frustrated and angry.
The term "mediation" has been used to describe everything from a warm fuzzy process that focuses on feelings to a strong-armed attack in which the mediator tries to pressure the parties into an agreement.
Did you know that there are three types of mediators? Once you understand the differences between them, you can make an informed choice as to the approach that best suits you and your clients.
The first type of mediator, the purist, works toward finding creative solutions that meet the interests and needs of both sides, ascribing relatively little importance to the parties' legal rights. If your case is more about hurt feelings and anger than it is about money, consider engaging the help of a purist to mediate it.
The parties are likely to appreciate this approach, which provides them with an opportunity to vent, and then shifts to a discussion of mutually satisfactory solutions. The solutions arrived at in this type of mediation often differ from what a court would order, in that the parties may agree to exchange apologies, provide personal services, or offer other non-monetary forms of restitution.
A "muscle mediator"
The second type of mediator is sometimes called a muscle mediator. If getting a prediction of a court outcome is important to you, choose a muscle mediator, but be prepared for a process that closely resembles a settlement conference.
These mediators routinely offer their opinion of the dollar value of the case. They use a heavy-handed approach, relying in large part on lowering the participants' expectations, in order to effect a compromise. They focus their efforts on the attorneys involved, and only rarely engage the parties directly in an exploration of their needs.
Discussions center primarily around determining liability and damages; the parties' feelings about what happened are generally ignored.
Muscle mediators typically assume that settlement can be achieved in a single session. Their chief strategy is to create doubt in the minds of the participants about their chances of winning at trial. These mediators sometimes quip that a good agreement is one which leaves both sides equally unhappy.
The third type of mediator, the centrist, treats the law as an important standard of reference, but considers the parties' own sense of fairness to be even more important. The centrist invites the parties to express their feelings about the dispute when it appears that spending time and energy in this way will clear the air and lead toward an agreement.
Mediations conducted by centrists often require more than one session, because they work through each step in the process slowly. On occasion, they may even adjourn the mediation, allowing the participants an opportunity to consult with outside experts, such as accountants or appraisers.
Resisting the temptation to press for a quick settlement, centrists often encourage the parties to go home and rethink a proposed agreement before signing it, in order to avoid post-settlement remorse.
A team approach
When your case is really important (and when isn't it?), it pays to engage the services of a team of mediators. Two heads are better than one when it comes to generating creative solutions and working effectively with a group in conflict.
Look for a team comprised of an attorney and a non-attorney; you want someone on the team whose thinking was not shaped by the rigors of law school. If the parties are angry about the dispute, an attorney-therapist mediation team works particularly well, because they can handle not only complex legal issues, but also strong emotions.
If you've had a bad experience with mediation in the past, it may have occurred because your expectations of the process did not match those of the mediator. Rather than resign yourself to an unpleasant experience in the future, try a different type of mediator next time. If you choose well, you and your clients should leave the mediation feeling that their most important needs were addressed and that every avenue that might lead to settlement was carefully explored.
Whether they end up with an agreement or not, your clients should feel that they got their day in court, and that you did all that you could to assist them by selecting a top-notch mediator who treated them with respect and gave their case the attention it deserves.
Elizabeth L. Allen is a member of the California bar and co-owner of Coast to Coast Mediation Center in Encinitas. She and her husband, Donald D. Mohr, co-authored "Affordable Justice -- How to Settle Any Dispute, Including Divorce, Out of Court."