Mediation: A View From a Mediator

Over ten years ago, I had the opportunity to take the 40-hour course required to become a mediator certified by the North Carolina Dispute Resolution Commission to conduct Superior Court Civil mediated settlement conferences.  It was by far the best negotiation course I have ever taken.  In subsequent years, I have assisted the teachers of that course as a “coach,” which provides a wonderful opportunity to renew and refresh the skills of a mediator.

So, what is mediation and what “skills” does a mediator need?  Mediation is a process which brings the parties together, face-to-face, with an opportunity to be part of the solution to their dispute.  It is not uncommon for mediation to occur voluntarily before litigation begins.  In North Carolina, all civil cases at the Superior Court level are ordered to mediation as part of the process of getting to trial.

In either event, the process is essentially the same.  A neutral third party, the mediator, is selected or appointed to facilitate discussions and negotiations between the parties.  In selecting a mediator, you want someone who will listen, who will probe, who will evaluate/understand the personalities involved, and who can make you think.

In almost every instance, the parties will begin in the same room and will educate the mediator about the case.  This is not the “jury argument” for each side, but a statement of the facts and positions from each side.  For the mediator, it is a time to listen and ask questions to gain an understanding of the points in dispute.  Maybe as important from the mediator’s perspective, it is the first opportunity to observe the demeanor of everyone in the room.  Body language and tone can reveal a lot about the emotions underpinning a dispute.  Every attorney has his/her own thoughts as to how this opening session should be handled.  Many request that their clients not speak unless asked a direct question.  Sometimes, the attorney will decide that there are points which the client can better explain.  Either strategy can be effective.  Much depends upon the attorney knowing the client.

While the parties may remain in the same room for the entire process, more often, at some point the parties will separate and the mediator becomes a shuttle diplomat – moving back and forth between the parties exchanging information and offers.  The mediator is not a decision-maker.  The role is to assist the parties in considering the merits not only of their case but of the opposition’s; recognizing realities and risks; and ultimately, trying to facilitate the parties’ finding a resolution to the dispute.  Most will tell you that a really good mediated settlement leaves neither party happy, but both satisfied.  What the mediator will not do is “pick sides” or advocate for one side against the other.  Most mediators will play “Devil’s Advocate” – probing, questioning, testing – to make certain that each party is thinking beyond its own box and considering the full picture.

As a mediator, while I appreciate lawyers who are prepared, more appreciated are lawyers who have prepared their clients.  And, clients/parties who arrive at the mediation understanding that while this day is not the “last best chance to settle,” it is often the best opportunity to listen, observe, evaluate and run cost/benefit analysis on the full dispute.  The process provides a reality check.  One of my favorite sayings is that there are two ways to spell principal/principle.  As lawyers, if our client wants to stand on principle, we can and will zealously advance their cause, but the client needs to understand that will not be inexpensive.  If “principal” matters more, then listening and being realistic during the mediation process may well lead to a resolution that makes economic sense even if it does not equate to a full-scale “victory.”  In my view, mediation is the final and best chance to decide which spelling of the word makes the most sense to a party.

Often, the mediated settlement conference is the gateway point to true litigation costs.  Many times, it occurs after written discovery has concluded (and sometimes before) but before depositions.

Lawyers may use it to size up the other party in terms of demeanor and what kind of witness they might make.  However, it is important for clients to understand that if the mediation is unsuccessful, then the next steps kick the “meter” up a notch as depositions and motion practice accelerate towards the trial date.

What is the take-away from this article?  Mediation can be a cost-effective means of tackling disputes, especially business disputes.  The neutral third party becomes a buffer between the parties; helping the parties get past whatever emotions may have crept into the business relationship.  The mediator can assist the parties in finding a resolution (not necessarily a middle ground) which allows the parties to untangle the dispute and move forward.  The parties control the outcome.  Arriving prepared as to the facts and background of your case, but with an open mind to consider potential options is the best mental approach for success.  And, actively listening, not just to the words, but gaining an understanding of what is driving the other side often is critical to finding a solution.

– Nan E. Hannah