Thomas P. Whelley II

Mediation Fundamentals – What You Need to Know

January 28, 2019Insight
Mediation Minute

Generally, mediation and its process are foreign to most litigants. With the possible exception of the parties’ lawyers and insurance adjusters, often even the most sophisticated business clients have never been in mediation and do not fully understand the process or know what to expect.

Frequently, as the mediator, in the early stages of the day I hear: 

  • “It is not my fault. I am not paying a dime”;
  • “This case is completely unfair and this is a waste of time”;
  • “I can’t believe they won’t pay what we’ve demanded, it is totally fair”; or
  • “I am not paying -- it’s the principle.” 

Likewise, litigants often come to the table with a preset amount they are willing to pay or accept in settlement.  Their ideas may be realistic but maybe not.

So how does the mediator take this foreign process and these seemingly intransigent positions and get the case resolved?

Encourage objective consideration of the conflict

It is important to encourage each side to see the case from the other’s perspective, even if they continue to reject its legitimacy.  The mediator can accomplish this by stating a factual position of the other side to the opposing party and counsel, either orally, through a deposition passage, or a document.  Then, the mediator may simply ask, “If your opponent testifies to that at trial, is there a chance the fact finder will believe it?”  Give the party time to understand what the question means.  Some litigants will quickly say, “But that’s not true,” or “Nobody could believe that,” or something similar.  Let the concept percolate for a minute or two and say again, “What if they (the fact finders) do believe it?”

I find this approach helpful, because it allows the party to hold onto their beliefs, facts, and reality but begin to see the possibility their version may not be believed in whole or in part by the fact finder.  I also add what a judge may say in jury instructions, if appropriate.  As we know, the jury is free to accept all or none of the factual testimony of any party or witness.  After presenting this fact to the party, I add, “If that happens, could you lose the case or have the verdict or settlement you have in mind be different?”

Create true understanding of the alternative: trial

I also find it helpful to describe, often with the help of counsel, what the trial may look like.  Everyone has seen a trial on TV, but most people have never sat in a witness chair, been required to tell their story in a convincing way, or been subject to cross-examination.  The litigants must tell their story in a persuasive manner to be believed and persuade a fact finder their version makes more sense.  The point is not to scare the litigant about the process but to point out going to trial may not get him everything he expects.

When litigants, even as they each are still allowed to hold onto their version of the facts, begin to understand their version may not be accepted, in whole or in part, by the fact finder, the case moves closer to resolution.