Fake news and the phantom advisor: Interesting times in mediation

Issue November/December 2017 By Sarah E. Worley
Dispute Resolution Section Review

Over the last 30 years, dispute resolution has become part of the legal landscape. We teach dispute resolution throughout our education system and, in the commonwealth of Massachusetts, we have codified it. Rule 8 requires that we discuss it with our clients, and certify to the courts that we have done so. For lawyers, mediation has become routine. For litigants, it is not.

Mediation is a strange animal. For most litigants, mediation is a first for them. Typically, they have been engaged in a lawsuit for years, have been working with their attorney for years — gathering documents, answering interrogatories, preparing for depositions, and worrying — and then they come to mediation. They meet a total stranger in the form of the mediator and, over the course of a few hours or perhaps a day or two, they are expected to make a leap of faith to trust a process that is completely alien to them. The outcome of this process may involve the most important financial decision of their life. It’s not surprising that litigants find the mediation experience to be unnerving and sometimes overwhelming. Whenever I walk into a doctor’s office, I feel as though all of the people there know more about medicine than me, but I’m still suspicious about their process. Are they really listening to me? They say they have my best interest at heart, but what they are suggesting sounds sketchy and they won’t guarantee me an outcome. I’m surrounded by experts in their field, but somehow I feel unbalanced.

That is how I think mediation looks through the eyes of some litigants. After a lot of anticipation, litigants come to mediation with the hope that their case will be resolved. They have talked to their attorney about what to expect from the process and maybe they have agreed on some acceptable outcomes. Then they arrive at mediation to find that there has been a change of counsel on the other side, or a change with respect to the decision-maker, or a development in the evidence that changes the other party’s — or their own — perspective. Suddenly, decisions are being made on the fly and options are being discussed that were never anticipated to be part of the discussion. Here are some things I have heard at mediation: “What do you mean we are conceding liability? When did that happen?” “Why are you telling me now that my claim for lost earnings is weak? You never said that before!” “You were always so confident when we talked about my case: why are you suggesting that we give up so much now?” Every mediator has heard some variation of these questions, in simple cases and complex matters. On occasion, in instances when there has been a really significant shift in positions or perspectives, a litigant may even turn to the mediator and ask, “What do you think? Does that sound right to you?” There is great training offered in how to handle those questions.

What we haven’t trained for (yet) is this: “You’re fake news!”

I have heard this several times over the last few months, sometimes directed at attorneys and twice directed at me. In all instances, the proclamation came from a litigant who heard something that they really didn’t like. The first time, I thought it was startling, but more of a flash in the pan. Recently, I attended the National Academy of Distinguished Neutrals retreat in Toronto and heard a recounting there of the same experiences from many of my colleagues across the country. Some reported a heightened level of mistrust directed at them and at the process of dispute resolution. Others described scenes in which litigants turned on their attorneys, their experts, and anyone else who was perceived as diminishing their expectations. In each case, those advisors, too, were accused of being “fake news.”

In his piece entitled “Americans Have Lost Faith in Institutions,” Bill Bishop observed that “Donald Trump’s most damaging legacy may be a lower-trust America,” and he cited some of the most popular targets of the president’s fake news campaign: politicians, scientists, judges, teachers, and others (Washington Post, March 3, 2017). There are anecdotal reports of financial advisors, realtors, dentists and lawyers being called “fake news” by their own patients or clients. One of the hardest things about any job is imparting disappointing news. It is human nature to want to please, but sometimes we can’t tell people what they want to hear. This has always been the case but, recently, expressions of disappointment have turned into accusation. In the vernacular, disappointment translates into “fake news.” That change of nomenclature doesn’t make the circumstance any better, but the catchy label somehow feels empowering.

Compounding that problem in the world of dispute resolution is the specter of the phantom advisor. The phantom advisor is never physically present at mediation, but wields tremendous power nonetheless. For years, the phantom advisor was a parent or other relative, a neighbor, a well-meaning friend, or other trusted advisor who cared deeply about the litigant but was not a trial attorney. When I started practicing law, the phantom advisor might weigh in by telephone. Later, it was by email, and now they often offer their counsel by text. I don’t want to sound dismissive of the phantom advisor: if their input is important to the litigant, then it should be important to the mediator. Mediators are accustomed to answering questions that originate with the phantom advisor. It’s natural for litigants to trust people they are related to or have known for years and the influence of the phantom advisor should not be disregarded.

What is more troubling is the coupling of the “fake news” proclamation with the remote phantom advisor who joins the equation via the internet. Personally, I find Facebook to be an efficient way to keep up with pictures of my friends’ kids or their travels. In my workday, I learn that more and more people rely on Facebook and other social media platforms for news, advice, guidance and counsel. Litigants reference Facebook when they report big verdicts they have learned about, or when they speculate about how jurors will view their case. I sometimes watch litigants discount their own attorney’s opinion because they “saw something different on Facebook.” It’s frustrating to watch this dynamic play out. We know that Facebook won’t be there to try a case or to help out the litigant in the aftermath of a verdict. We also know that lawyers who are trying to do their best work for their clients are demoralized when their good advice is cast aside in favor of wisdom imparted by anonymous sources who have no connection to a case.

The antidote to the challenges posed by the cries of “fake news!” and the influence of the phantom advisor is thorough preparation of litigants for mediation. Knowing that a client has never been to mediation before, a lawyer can avoid a lot of problems by explaining in detail exactly who is expected to be present at the mediation; how the process will work in a step-by-step description; what the client can expect in terms of the pace and scope of mediation; what the attorney can anticipate in terms of the other parties’ positions; and what surprises might pop up. If the client’s position has been extremely rigid to date and the case is now headed to mediation, it’s a fair bet that to settle the case, the client may need to adopt a more flexible position. That is a discussion that should take place before the mediation session. Lawyers should also share with their client what they can expect from the mediator.

At the end of the day, mediators and lawyers hope that their clients find the mediation process to be productive, satisfying and dignified. If lawyers prepare their clients thoroughly for the mediation process and mediators create a respectful and professional atmosphere for some serious conversations to take place, we can resurrect some of the institutional trust that has been eroded and eventually eradicate the fake news battle cry from the arena of dispute resolution.

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