The Problem with Mediators

Now onto facilitative mediation and my opinions and gripes about same.

Sometimes I feel like I spend as much time in mediation as I do in court. Nearly all cases I am involved with go through the facilitative mediation process, and most of those settle through that process. So, it works, it’s great, etc..

And, I’ve been to any number of programs at which the presenter extols the value of mediation in probate court matters. At those programs, we hear the same clichés about family dynamics and how many cases are really about how people feel and not the legal issues underlying them, and that the role of the mediator is to help the parties feel engaged in the process, and to vent their personal feelings so that they can come to peace with resolution of the legal matters which are only a manifestation of those issues.

To my mind, the problem with most mediators is that they actually believe this crap. I like to think, and I believe, that by the time I get to mediation with my clients, they already have separated their emotions from the legal process, they understand what the risks and costs of going forward are, they appreciate that the court process will not provide them with a moral victory – only a financial outcome that could be favorable or unfavorable. So, when I am in those situations, I have a strong desire to say to the mediator – “enough with the touchy feely stuff, let’s get down to business.”  I suspect I am not alone.

Now I will acknowledge that my bias is also a product of my arrogance. And this is how arrogant I am:

As I see it there are three types of cases.

Scenario 1: Two weak lawyers, both of whom need someone to help them do what they cannot do on their own = educate their clients, figure out what’s a fair result, and help them avoid the embarrassment of actually having to perform in a courtroom if they don’t reach a deal. The mediator’s job here is to make the two weak lawyers look competent (save face) and get to a result that both sides can swallow.  The difficulty is that the clients have likely only been fed hot air by their lawyers, and have significant misperceptions about the value of their case/ the strength of their legal positions.  In these cases I suspect having the mediator delve into the feelings that the clients have toward one another and the sources of their mutual dislike has some value, in that it allows them to open up to the mediator who can build a rapport with them and then start shaping a settlement agreement.

Scenario 2: One weak lawyer and one strong lawyer. In this situation, the mediator’s role is getting the weak attorney’s client to agree to something that allows the weak attorney to save face and avoid getting taken to the woodshed in court. So, I think, go talk to the weak attorney’s client about his/her feelings if that helps – but my client probably doesn’t need or want that.  Rather, what I want is for the mediator to bring me a number.  My client will pay something – but that number is discounted by the fact that I don’t think the attorney on the other side wants to litigate.

Scenario 3: Two strong lawyers. I have client control and I know what my “walk away number” is.  Opposing counsel has client control and knows what his/her “walk away number” is.  Maybe there’s a deal to me made, maybe not.  The whole dance, and the only thing either of us need help with, is shuttle diplomacy – going through the back and forth process of offer and counter offer to test when we are getting close to walking out – and then pulling back before things break down.  If we’re close, but not there, the real skill we are both looking for in a mediator isn’t helping our clients get their feelings out, but rather the time-honored art of banging some heads together and getting it done.

Obviously, there are variations on these three themes – more or less experienced attorneys, more or less client control. My point is that I think we have gone too far down the path of touchy-feely. While there is a place for that in mediating some cases, good mediators need to realize that when they’re working with more experienced and skilled attorneys, they may need to focus less on touchy-feely and more on get r done.

Look, some of my favorite lawyers are mediators. It’s a tough job.  I respect you all.  And please take what I say above for what it is – random thoughts and rants.