The civil justice system is intentionally adversarial. The rules pit one party against the other in a contest to see who will win the case. It is sometimes said that from these competitive, adversarial contests, justice will emerge when the court rules for one party or the other.
But this competitive, adversarial approach is completely out of place in a mediation because, unlike a judge or jury, the mediator cannot rule in anyone’s favor. Mediation is defined by Section 44.1011 of the Florida Statutes as “A process whereby a neutral third-party acts to encourage and facilitate the resolution of a dispute between two or more parties.”
In other words, by law, the mediator is simply the supervisor of a supervised settlement conference. The mediator has no legal authority to rule on any aspect of the case or to issue binding orders. No amount of arguing, stomping of the feet or gritting of the teeth will empower the mediator with the legal authority to rule for the strident lawyer’s client. This is all wasted effort.
Trial lawyers accustomed to engaging in combative and aggressive banter should also keep in mind that mediation is a consensual and voluntary process. The rules governing mediation expressly provide that parties are not required to put up with unpleasant behavior.
This is codified in Rule 10.300 of the Rules for Certified and Court Appointed Mediators, which expressly states that “A mediator’s responsibility to the parties includes honoring their right to self-determination.” Self-determination means that once the parties have complied with a mediation order by showing up, it is up to them to determine what happens next. There is nothing to stop a party from ending the mediation if the opposing counsel is unpleasant. No one is expected or required to put up with a jerk.
Instead of relying on pointless posturing and arguing during the mediation, trial lawyers need to understand that the process of mediation begins well before the actual mediation session. No self-respecting trial lawyer would ever start a trial without extensive trial preparation. Similarly, no lawyer should ever enter the mediation room without prior mediation-specific preparation.
First and foremost, well before the mediation, the trial lawyer must have a detailed and frank conversation with the client. This requires an honest assessment of trial risks and rewards, including the costs of trial, both directly and in terms of time lost and energy expended. The client should not hear the potential negative risks and pitfalls of the lawsuit for the first time from opposing counsel at the mediation.
Beyond the dynamics of simply winning or losing this particular case, the trial lawyer must also be sensitive and attentive to the client’s many other needs. The client may have a desire to end the litigation for business reasons such as industry reputation, exposure of business secrets, or to end distraction and disruption in the workplace caused by the ongoing lawsuit. There may be personal or emotional reasons to consider. The client may have tax strategies which are unknown to the trial lawyer.
All of these things, and more, must be discussed in an open and frank way in order to plan the negotiation strategy for the mediation. At the very least, prior to the mediation, the client must focus on a realistic number beyond which the client will not move, and identify any nonmonetary terms which the client must have in order to settle. In other words, they must already have determined their true bottom line.
Having determined the end game well in advance, the negotiation strategy for the mediation must center on how to get the conversation to go there. The lawyer and client must understand that negotiating in mediation has some aspects in common with the psychology of haggling over a used car.
If the car salesman too quickly accepts your first offer, your reaction might be disappointment, thinking you offered too much. That is why the first offers and counter-offers in mediation are often very far apart. Each side is giving themselves, and each other, room to maneuver. Human nature requires some back-and-forth in order for the parties to feel that a fair deal was struck. This is true for first timers as well as experienced business people.
The trial lawyer must prepare the client for the reality of this unavoidable, and likely protracted, haggling process. If you prepare your client properly, not only will your client not to be surprised or offended by a moonshot first demand, or a low-ball initial offer, your client will feel empowered in the negotiation.
Once the negotiating starts, avoid the common trap of giving undue importance to those first movements. This is sometimes referred to as “anchoring.” It is the psychological phenomenon whereby too much emphasis is placed on the first offer or counter-offer that is made. When neophyte negotiators fall prey to anchoring, they paint themselves into a corner, feeling the need to make subsequent moves premised upon these first moves, sometimes matching counter-movements dollar for dollar. It is no surprise that such cases often don’t settle.
However, the party that has properly prepared for the mediation has already calculated their own best and worst outcomes, and knows its bottom line. If the adverse party is way off the mark in its first few moves, the well-prepared party can adjust accordingly and make sober counter-offers which will eventually move the negotiation to the desired point, rather than merely react in kind to the anchor that has been placed by the other side, or worse, be offended and prematurely call an end to the negotiations.
Understanding these, and other negotiation tools, is more helpful to achieving the client’s goals than simply going into the mediation full of fire and brimstone. Sober pre-mediation preparation, frank assessment of risks and benefits, and understanding the nature of human behavior, rather than relying on the combative, adversarial approach, are the keys to mediation success.
Oscar Sanchez is a Florida Supreme Court civil circuit and appellate certified mediator with OASMediation in Miami, where he focuses on being a mediator, arbitrator and court-appointed special magistrate. Previously, he was a civil litigator and trial lawyer.