How to Borrow a Mediator's Power
By Dwight Golann
Mediators sometimes say that they have "no power." This is true in the narrow sense that a mediator cannot compel a party to agree to a settlement. However, mediators do have wide power over the process that the parties use to seek agreement. Like the conductor of an orchestra or the referee in a sports contest, a mediator can influence the rules, tempo, emphasis and other aspects of a negotiation, and by doing so can greatly affect what the parties can achieve
Most legal mediators see their primary goal as finding settlement terms that are acceptable to the parties. Neutrals are often unsure which tactic will be effective to achieve this and so are open to suggestions from advocates. Wise lawyers intervene actively to shape the mediation process, rather than submitting to it passively or treating the neutral merely as a messenger. Among a mediator's powers, and their implications for negotiators in legal disputes, are the following:
Control of the Format: The mediator brings the parties together
Mediators influence when the parties stay together or break into caucuses. In particular, by convening an opening session, the mediator gives you a unique opportunity to speak directly to the party on the other side. Do not waste it:
‑ Talk directly to the other side as well as to the mediator
‑ Present your case confidently, but avoid an adversarial tone
‑ Show that you hear your opponent's viewpoint
‑ Use visual aids to support your points
‑ Consider having your client or an expert speak as well
Legal mediators typically place the parties in private caucuses and conduct shuttle diplomacy," but they can modify this format
Consider asking for joint meetings with the other side, or simply the other attorney, during the process, for example to exchange information, bargain directly, or explore terms for repairing the relationship. If your client is an adept negotiator, consider having the client request a "principals only" meeting with the client on the other side.
Moderator: The mediator influences what is discussed
In his or her role as moderator of the process, the mediator can strongly influence what issues are discussed and in what order and when and how offers and other messages are communicated, and can set deadlines for progress or for ending the negotiations. This is especially true when the disputants are in private caucuses.
Ask the mediator to focus attention on your issue, or to deflect discussion from a difficult point. Request the mediator to pose questions to the other side. Urge the mediator to use the negotiation format you prefer. Ask the mediator to reinforce or delay deadlines.
Confidentiality: Mediators must respect confidences
Mediators are bound by an oath of confidentiality that strictly limits what they will communicate to the other side, although not their exercise of judgment about what they hear. Implications:
Give mediators secret "ammunition" in caucus to influence their judgment about the strength of the parties' cases (e.g., bring in a strong witness or document). Float ideas for creative solutions and get the mediator's private reaction to them. Ask the mediator to have a "heart to heart" talk with an unrealistic client about the client's larger interests, bargaining position, or view of the merits.
Information: Mediators gather valuable data from, and about, the other side
As mediators spend time alone with each side, they gather useful information about their attitudes and inclinations as well as about the case itself. Because disputants are usually isolated in caucuses, they can gain relatively little information about each other. Implications:
Ask for background data about the other side, such as their settlement priorities and factual information about the case. Ask for information about the other side's attitude and intentions: Their mood, whether they are ready to make substantial concessions, whether they want to negotiate in a principled or positional manner, and so on. If you trust a mediator, ask him or her for advice or coaching about where the process is going, what you should do next, and what is likely to happen if a particular message is communicated to the other side.
Appearance of Neutrality: Mediators are seen as neutral
A mediator's greatest single power is that he or she is seen as unbiased, with no stake in the outcome of the negotiation. As a result, the same proposal or argument that would be rejected immediately by an adversary if it were made by you will be given careful consideration if it is presented by a mediator. Implications:
Use mediators to make your arguments to the other side. Ask mediators to float your proposals as their own. Have mediators deliver bad news to your adversary.
Outsider's Perspective: Mediators actually are neutral
Mediators come to a case fresh and without preconceptions. As a result, they can often see issues that insiders miss and can better predict the reaction of an uninformed outsider (such as a judge or jury) to the parties' evidence and arguments. Implications:
Use the mediator to give your own team a reality check about the likely outcome if the case is not settled. Think carefully, however, about whether you want to have the mediator give an evaluation to both sides.
Is it likely that the mediator will ratify your case assessment or the other side's? Will the evaluation make your own client unrealistically tough? Exactly which issues do you want reviewed? In how much specificity?
Flexibility: Mediators' roles are flexible
Mediators do not have to maintain the dignity of judges, or show the loyalty of advocates. Implications: A mediator can
‑ Raise "irrelevant" emotional and other non‑legal issues to your client and
the other side (e.g., the fact that one side won't settle without an
apology).
‑ Use non‑lawyerly techniques (e.g., become a therapist or salesperson, as
the occasion requires).
‑ Deliver bad news to the other side ‑‑ or your own client.
‑ Certify the fairness of a settlement to outside constituencies.
‑ Act as a scapegoat for a difficult compromise.
Control of Format: Mediators can define "take it or leave it" settlement terms
Late in the process, mediators sometimes propose a "package" or "mediator's proposal" of terms that will be considered by both sides on a take‑it‑or‑leave‑it, or "what if," basis. Each side privately tells the mediator whether they can live with the terms: If both agree, there is a deal. If anyone says no, they do not learn whether the other side would have accepted the proposal. Implications:
Ask for input before the mediator sets the terms of the proposal. It will be very hard to convince an adversary to accept worse terms than the mediator has designated as "fair." Treat this as an important stage in your negotiation with the neutral.
If you decide to lock in or the proposal seems likely to exceed your limits, warn the mediator before he or she sets the terms of the package, so your position has the maximum likelihood of being reflected in the proposal.
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