View From the Mediator’s Chair — What To Do (and Not Do) in Mediation

Issue November/December 2020 December 2020 By Arthur Pressman
Dispute Resolution Section Review
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Arthur Pressman

Switching chairs from advocate to mediator affords a new perspective. As some have reminded us over the years, what you see depends on where you sit (or stand). Conduct that I once thought was useful as an advocate, I now see as counterproductive. Here’s a short list of mediation behaviors that may adversely affect the likelihood of resolution. From where I sit as a mediator of franchise disputes, lawyers may impede resolution if they don’t follow these steps.

1. Do not ask to skip the opening session

How many times have you asked the mediator to dispense with a joint session for fear that participants will be angry with each other? Do you honestly believe that emotion will disappear when the parties move to caucus sessions? Or are you really signaling your own discomfort with emotion? If anger or other emotion is triggered by the dispute, moving the parties, and the emotion they feel, into another room doesn’t do anything to advance resolution. Let the clients be heard by the others; it may help everyone to understand why the dispute arose in the first place and how to resolve it now. Even the most straightforward book account action has a bible story at its heart. Lawyers are well-advised to give the clients, not themselves, the opportunity to give it voice. After all, it’s the client’s story, not the lawyer’s, to tell.

2. Remember that your client is at mediation to settle a dispute — does your annihilation of the opposing party in the opening session further that goal?

The scorched-earth opening, full of fire and brimstone, may momentarily thrill your client but is otherwise remarkably ineffective. I’ve never seen a party apologize and withdraw its claim after being on the receiving end of a lawyer-opening meant only for a client’s ears. I have, however, seen a party (and his lawyer) walk out of mediation and set resolution back for months after being excoriated for bad faith, double-dealing, thievery and the like in a no-holds-barred opening. Remember the story of Rashomon, or its Hollywood version, “The Seven Samurai” — what you see does not make it so. Everyone has his own version of the past. Mediation is the time to look to the future, not the past.

3. Let your client be an active participant, particularly during the opening joint session

Studies show that disputing parties evaluate the success or failure of a mediation less on whether their case settles, and more on whether they feel that they have been heard. Plaintiff or defendant, franchisor or franchisee, it makes no difference — each of them has a story to tell and is aching to get it out. The more the lawyer controls the airwaves, the less airspace is left for the client. In addition, as an advocate, you lose a valuable opportunity to see how your client presents in something other than the question-and-answer rhythm of examination in deposition. And, more importantly, your client, if silent, loses the opportunity to directly tell his counterpart how the dispute has affected him, and how much he hopes that the parties come to accord. As it is in a trial, the lawyer is the painter and not the painting. Let it be about your client, not about you.

4. Ask yourself honestly, why are you at mediation? Do you really want to settle a case, or do you want something else?

Free-ish discovery, a second (or first) look at the other side, another billing opportunity, satisfaction of a mandatory step in a dispute resolution clause in a franchise agreement, or because a judge or arbitrator ordered, directed or strongly suggested you should? These are all plausible reasons why a lawyer might be at mediation, but not likely why your client is there. She wants to settle the case; you hopefully have many cases, but she only has one. If you are there for something other than resolution, ask your client why she is there. Only if the two of you are on the same page will a mediation work for you both. And if it works for the lawyer but not for the client, it hasn’t really worked for the lawyer either.

5. Treat your counterparty with respect. How hard is this, you ask?

I’ve seen lawyers and clients (more lawyers, I admit) drip with sarcasm and contempt when addressing their mediation counterparties, and to what end? All it does is show a lack of self-control or worse for the offending actor and create more work for the mediator to keep everyone dedicated to the task of resolution, and not heading for the elevators. In an international mediation, I once heard a U.S.-franchisor refer to his Latin-American master-franchisee as “you people.” Tone-deaf, ethnically insensitive, contemptuous — you pick a description for it — but it did not build a bridge to resolution.

6. Remember, there’s little or no independent value in being right

Ok, I’ve said it. This proposition is the hardest thing for lawyers to swallow, or much less repeat with conviction to their clients. In franchise disputes, we are not fighting against racial injustice or for the right to vote (two things where public pronouncement of right and wrong is important to us all); we are usually fighting in private over money, property and other coin of the realm where we balance multiple considerations, legal and non-legal, risk and expense, on our path to a resolution with which we can live. The real value in resolution is finality, not that one party prevails over the other.

7. When you pick a mediator, don’t pick one you expect to lean on your opposition

What, you ask? Isn’t the point of picking a mediator to select one who will be your ally, carry your water and generally tell the other side how terrible its case is? Not exactly. I submit that the mediator you want is the one who will help your settle your case, and one who doesn’t lower the boom on your opposition to accomplish that goal. That boom swings both ways, and it’s equally likely that your opposition will abandon the mediation and press forward rather than lose face in front of his client at mediation. In fact, the best advice I can give is to let your opponent pick the mediator. That way, you’ll end up with someone he respects and to whom he will listen, rather than the “strong” mediator you forced on him solely to beat him into submission. 

8. Make sure you bring the right people with you, and that opposing counsel does the same

In my first mediation as a mediator, I found myself talking at midnight on the phone to the wife of a franchisee who was on the receiving end of a termination action by his franchisor. By that time, we had been mediating for almost 15 hours, and at that moment I realized why our mediation was still going strong — the franchisee had been calling her at each point in the negotiation for input, and because she was not in the room with the rest of us, she didn’t really have a good sense of how the mediation was going. Her instructions only reflected what she wanted and not what was possible. I should have found out before the mediation that the franchisee’s business was his family’s business, and I should have pressed for her attendance. I now always ask in advance if all decision-makers and decision-influencers will be in the room. If key people on whom either side relies are not present, you will face a communication obstacle that may prevent resolution.

9. Most importantly, do your own risk analysis to show what’s at risk if you don’t settle at mediation, and what’s your best (and worst) alternative to settlement

You need to understand how much it is going to cost you and your client to continue to trial if mediation fails — not what your client has already paid, or what you have already billed. That’s sunk and shouldn’t really be part of the matrix for deciding whether to settle at mediation or go to trial. The real issue for you and your client is what your “going forward” expenses and fees will be. Then, you need to realistically consider the likelihood that you will prevail at trial — not a rose-colored-glasses view that only looks for support for your claims and dismisses all contrary evidence. If you only have a 50% (or less) chance to win, say it aloud to yourself and tell your client too. Then, be realistic about your potential damage ranges. Do you have a low, middle and high range of expected damages if all, or less than all, goes your way at trial? The figures will give you a basic risk assessment that you should consider in deciding whether to accept offers at mediation. From this analysis, you’ll arrive at your best and worst alternatives to a negotiated agreement. If you ignore data, and concentrate on gut instincts, you run a real risk of missing what was obvious had you only thought about it. 

Arthur Pressman is a full-time independent mediator and arbitrator of commercial disputes, including franchise disputes. He teaches ADR at Boston University School of Law and formerly was an equity partner at Nixon Peabody LLP. Contact Pressman at