By Kenneth D. Stern, Circuit Judge (Retired)
Published April 2017
Do you tend to think of a Mediator as someone who is, essentially, a message carrier who runs back and forth between the caucus rooms to convey offers and counteroffers? If so, you’re denying yourself the best weapon you’ve got at a mediation – the Mediator.
It may seem paradoxical to describe, as a weapon you can use, someone who is supposed to be a disinterested neutral, but it isn’t, because the Mediator’s goal is to serve both parties by producing a reasonable and fair settlement. Think of the Mediator as a groundskeeper of a tennis court, whose purpose is to smooth over the rough spots on the playing surface so that the game can be played without the players or the ball being impeded or diverted by the bumps on the surface. Those “bumps” in a mediation are the parties’ (and sometimes the lawyers’) egos, emotions and misperceptions that stand in the way of the clear, rational thinking that a party needs to exercise to negotiate to a worthwhile settlement.
However, the Mediator cannot be your ally if s/he begins the mediation session by asking, “OK, what’s this case all about?” Some Mediators, including myself, will contact both or all counsel to request that, before the mediation date, they send me in confidence their pre-mediation summaries, setting forth the basic facts as the attorney perceives them, the client’s position regarding the other parties and all factual and legal issues of note, the attorney’s perception of the other parties’ positions and perceptions, his or her evaluation of the strengths and weaknesses of each party’s position, and subjective factors, such as misperceptions of the client or other parties as to the likely outcome, unrealistic positions being taken by opposing counsel, etc. The Mediator should be sent copies of all relevant pleadings and other papers which have been filed, and all relevant Orders entered, as well as photos or copies of any key documents, pictures, etc. that you plan to use at mediation.
I review the material carefully, and will often call the counsel who submitted the summary and materials, to address any issue that may bear upon the feasibility of reaching a settlement. I may also call the other attorney and discuss various issues, and lead the conversation into an area which the first attorney had highlighted. Of course, the second attorney’s submission is equally helpful to me.
If the Mediator you select does not do these things, then you must send him or her a letter or email without being asked, dealing with the types of issues described above.
Always urge the Mediator to commit to holding a joint session to begin the mediation, and to include in his or her remarks such things as how uncertain the outcome of litigation is, and to stress how much better it is to avoid the uncertainty and potential of a devastating verdict. There is only so much you can do in conditioning your client to be doubtful about the outcome of the trial, without lessening your own stature in your client’s eyes – so let the Mediator help you get that point across.
If you are experiencing a particular problem, don’t hesitate to ask for the Mediator’s help in resolving it. For example, if your opposing counsel has been declining to produce certain documents or information without which you would not consider agreeing to a settlement, ask the Mediator to call the other counsel to discuss the case, and to include mention of the “missing” discovery documents and to tell the other counsel that s/he believes that you will not settle unless you receive that material enough in advance of the mediation to be able to analyze it and investigate its authenticity. Another problem may be that you are having difficulty in getting your client to understand that mediation is a voluntary process and that no one can force the parties to settle; don’t hesitate to ask the Mediator to include such assurances in his or her opening remarks at the joint session.
Choose your Mediator carefully. Ask your colleagues if they have had experience with, or know the reputation of, the Mediators on the proposed list you are considering. And no matter whom you select, don’t hesitate to be pro-active, prior to the mediation, in being in contact with the Mediator on any issue that concerns you.
Since his retirement from the Circuit Court, Judge Stern has served as a Mediator, Arbitrator, Special Master, Hearing Officer and Umpire. After law school (where he was Editor-in-Chief of the Law Review), he clerked for an appellate judge, served as a Trial Attorney with the Antitrust Division of the U.S. Dept. of Justice, and as an Asst. U.S. Atty. in the Southern District of Florida. In 1981, he came to Palm Beach County, and practiced civil litigation and criminal defense, in federal and state courts. In 1999, he was appointed to the bench by Governor Jeb Bush. Judge Stern may be reached at email@example.com or at 561-901-4968.