When I transitioned from my employment law litigation practice to working as a full-time neutral in 2011, I understood that I would no longer be serving as an advocate for one side in a dispute but would instead be acting as an unbiased go-between, listening to both sides, and helping them reach a mutually satisfactory settlement. I may have even seen myself as a blank slate on which the two sides would be able to map out their issues.
What I learned, however, was that a neutral who acts as a blank slate does a disservice to both parties. They don't need to hear themselves talk; they need an informed and empathetic professional to bring them together and help bridge their divides. A good neutral works as an advocate for both parties by helping them to uncover the facts of the case, consider compromise and move toward resolution.
It's a tall order. Plaintiffs and defendants come to the table with attorneys who are being paid to "have their back." Those attorneys are expected to get a "win" for the client and must be seen as taking a strong stand on their behalf. This is laudable, but it isn't always productive. A good neutral can help advance the settlement negotiations, while allowing the attorneys for both parties to maintain their advocacy posture, by taking the lead in suggesting a resolution road map.
When parties commit to working with a mediator to negotiate a settlement, they select someone whom they trust will handle their case professionally and diplomatically. But it is not the mediator's job to tell the two sides how to resolve their case. Counsel for both sides must be willing to engage in a back-and-forth with the neutral if they hope to achieve a satisfactory settlement for their clients. If they come to the table with closed minds and intractable demands, the mediation will stall in its tracks.
Counsel will serve clients best by asking for the mediator's input and advice - this is referred to as an "evaluative" approach to mediation. The neutral will have met privately with each side and will have heard their specific demands and concerns. She is thus uniquely qualified to provide guidance: She knows what would constitute a reasonable settlement framework for both parties. But her knowledge will be of no help unless counsel actively asks for her suggestions before simply tendering a proposal to the other side. While not obligated to accept the mediator's advice, counsel can use this information to structure a proposal that has a better chance of succeeding.
When counsel for the parties actively work with the neutral, she can guide them toward a settlement upon which they can both agree. When asked, she may even offer a mediator's proposal to help bridge the gap of the parties' respective positions. By engaging with the mediator, counsel can help create a path toward satisfactory resolution of their case.
Even the best mediator cannot bake a settlement cake without the proper ingredients, however. Before she can suggest grounds for compromise or create a proposal upon which the parties can agree, she must have sufficient information and input from both sides. She must know what issues are driving the dispute, how the parties view their positions, and what are the non-negotiable points for each side.
The attorneys must therefore be willing to invest the time to educate the mediator about the issues that matter most to their clients. Is the plaintiff primarily focused on getting a large financial settlement, or will an apology and acknowledgment of wrongdoing be sufficient? Does the defendant truly believe that it acted properly, or is it mainly concerned about reputational damage or potential future claimants? What is the dollar threshold at which a party will walk away from the negotiation?
When the neutral understands what is motivating both sides to the dispute, she can more easily identify hot-button issues and work around them. She can suggest a resolution that addresses the key concerns for both parties without tipping the balance too heavily in one or the other direction. And when the parties believe that their issues have been heard and understood, they are more open to negotiation and more willing to compromise.
In addition to educating the mediator, counsel should be prepared to come into the mediation with a commitment to focus on bridging gaps, rather than scoring a win at any cost. Attorneys who treat one another civilly and listen respectfully to each other demonstrate to their clients that there may be a middle ground. They set a tone for the negotiations that can help lower temperatures and encourage the parties to actively listen to each other. They may be advocates, but attorneys best serve their clients when they engage in good-faith negotiations with each other.
There may be times when the parties are so entrenched in their respective positions that progress seems out of reach. They may be unable to understand the other side's interests and priorities and may insist on standing firm and demanding concessions. Such distrust and skepticism can block the path toward agreement, but counsel can help move the needle by thinking outside the box. There may be a novel solution that neither side has considered, and it could be just the thing to overcome barriers to settlement.
Counsel should share any such out-of-the-box ideas with the mediator and let her be the heavy. Instead of suggesting a new idea directly to the client, counsel can instead ask the mediator for her opinion about it in front of the client. The mediator's opinion carries special weight because of her position as a neutral with expertise, and her opinion may win over the client more effectively.
When I mediate an employment case, I know that there may be more to the story than what is stated in the complaint. In the aftermath of the COVID pandemic, the level of workplace stress is high, with almost half of workers reporting that they have experienced anxiety at work. Employers have been working to address these issues, but news stories about workplace shootings and other violence underscores how entrenched and challenging such issues may be.
Therefore, a good mediator will collaborate with the parties to try to uncover issues that may be coloring both parties' perspectives. When the mediator understands the underlying issues in a case, she can approach the mediation from an empathetic, trauma-informed place. She can give both parties the opportunity to open up about problems and concerns that have influenced their approach to each other and their workplace.
In order to foster this understanding, however, counsel must ask the client to be transparent with the mediator, to open up and talk about issues that may be difficult for them. Such transparency can ultimately lead to transformation that will help erode these issues and achieve a mutually satisfactory settlement.
Ultimately, counsel's job is to weigh all the options before their client and help them make an informed decision about next steps. Will settling the case based on the mediator's facilitative guidance be in the client's best interests? Is settlement better than going to trial? Are there other interests at play and does the potential settlement address those issues?
The mediator's job is to help the parties reach a satisfactory settlement of their dispute, but counsel's job is to make sure that the proposed settlement is the right choice for their client and the best alternative to non-settlement alternatives. When counsel actively engages with the mediator, educates her about their client's position, listens openly to the other side, and shares underlying issues that may be coloring the negotiation, the likelihood is high that the parties will arrive at a mutually satisfactory resolution of their dispute. Indeed, the settlement of disputes through the mediation and ADR process provides certainty to the parties and shields the parties against the risks posed in litigation and trial. In my opinion, such certainty is worth its weight in gold.