In my 20 years as a judge, I’ve watched as many attorneys tried to resolve their cases through mediation. Now, it’s my turn to take what I’ve observed – and learned – from some of the best mediations and use it in my private practice to the benefit of parties who hire me. The central Ohio area is fortunate to have many fine mediators. It would be my privilege to join that community.
Why mediation? For one thing, it’s far less expensive than trials. Trials can be an all or nothing proposition for the clients and the attorneys. Mediation gives both sides the ability to walk away a winner. The parties get to take an active role in the process and avoid the risks associated with turning the decision over to a judge or jury.
The dockets in many courts are very crowded. Criminal cases tend to get priority and many civil cases must play a long waiting game. COVID-19 made the problem significantly worse. Mediation gives the parties the opportunity to bring their case to a much quicker resolution. This is something both parties often want when they agree to mediation.
As a mediator, my approach is less about arm-twisting and more about getting buy-in from both sides. Some firm questioning and truth-telling on my part will be required, but my aim is to gradually move the parties toward a settlement. Ideally, I want both parties to feel that the settlement is good for them.
A mediator needs a summary of the case from each party before the mediation begins. The first time a mediator learns about the facts of the case should not be during the first meeting. The mediator needs that statement well in advance of the mediation date so that he can be intimately familiar with the case. It is important that the attorneys know this. It will be appreciated by the attorneys and the parties. If the attorneys can agree on what the issues are, either as to the facts or law, letting the mediator know in advance can be very helpful. The attorneys do not have to agree to the answers to the questions in order to agree on what the key issues are.
The mediation summary provided to the mediator, unless otherwise agree, should be for the mediators’ eyes only. If a mediation gets off to an adversarial start, it can cast the entire process in negativity – making success less likely. If attorneys are serious about wanting mediation to succeed, they will likely go along with this approach. That doesn’t mean they’re not able to argue why they are right and the other side is wrong, but we can debate the evidence later.
It also is unproductive for the lawyers to give opening statements, if at all, in front of the other party and attorney. An attorney might feel compelled to say something that pleases their client, but at the same time is upsetting to the other attorney’s client. Statements like that only serve to limit the chances of a successful mediation. There will be plenty of time for advocacy as the process unfolds.
Once the mediation is underway, a good mediator should ensure that the process is moving along at a reasonable pace, though the parties should not feel rushed and should be given an opportunity to participate.
When an attorney gets their opportunity to discuss their evidence with the mediator (not with the opposing party) and play their advocacy roles, the mediator should be prepared to weigh in with questions such as, “That’s true, but what if?” This back and forth will hopefully help push the mediation toward agreement. This is also where preparation by the mediator and familiarity with the case becomes very important.
The mediator also should feel empowered to provide their point of view. That isn’t always easy, especially in hotly disputed cases where the parties have polar opposite positions and a lot of money and/or emotion at stake. The mediator needs to remind the parties of the risks of not reaching a settlement.
Getting a mediation over the finish line takes firmness combined with finesse. Sometimes it means telling one party that their settlement offer will never be accepted by the other side and is not something that they can reasonably expect at trial. Often it is not the attorneys that are the problem, but the client. The mediator can be very helpful bridging that gap as well.
The best mediations are rooted in the mediator setting reasonable expectations, providing firm advice, asking difficult questions, keeping the process as non-adversarial as possible, and playing the role of negotiator when needed. Sometimes, it comes down to helping one or both attorneys bring some reason to their clients.
Remember, the goal is for both sides to leave thinking they got a good deal, not that they had to accept something that they did not want. This is not easy but very worthwhile when achieved.
Charles Schneider, an Of Counsel at Isaac Wiles, spent more than 20 years as a trial judge, most recently as a Franklin County Common Pleas Judge.