Although there have been only a few, my bad experiences as a trial attorney with mediation have happened because the mediator was or was perceived to have been disrespectful to my client.   It has happened both in my role as plaintiff’s counsel and in my role as defense counsel.  What do I mean by being “disrespectful?”  Simply put, by not listening to my client’s position, the mediator came across as rude and impertinent.  Could bad motive be attributed to such behavior?  Unlikely.

Instead, the mediators in those cases focused too early in the mediation process on the substance of the case.  As most attorney mediators are trained from their earliest law school days to “think like lawyers,” you really can’t blame them.  As a result of such thinking, many mediators make their own “early assessment” of how the law will be applied to the facts of the case, or make their own determination of the factual merits of the case.  This leads them to skip the all important steps of listening and empathizing.  Listening and letting the parties have their say.  Listening as the parties begrudgingly modify their negotiating position.

By not listening first, before confronting the litigant with the practical realities of why their position and expectations need to be adjusted if settlement is to be achieved (either down in the case of the starry-eyed plaintiff or up in the case of the stubborn defendant), those mediators come across as being disrespectful.  By not listening and staying engaged during negotiations, those mediators risk losing an opportunity for settlement. My pledge is to avoid this trap by being prepared, being ready to ask intelligent questions and being willing to listen before proceeding to the nuts and bolts of settlement negotiations.  In short, my pledge is to be respectful of the parties and their counsel.

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