Mediation Myths

March 22, 2010

There are myths  that we hear about what  mediation is and what a mediator does.

I propose telling some stories to expose three of those myths about mediation.

  1. Myth one: it’s touchy feely stuff and not real law or problem solving.
  2. Myth two: agreeing to mediate is a sign your case is weak.
  3. Myth three: if you aren’t tough in the mediation, you’ll have to compromise too much.

These are true mediation stories of cases I’ve had, made generic to preserve confidentiality: the substantive areas vary to demonstrate the issues are universal. The stories include one insurance, one estate, and one employment

  1. A nurse in a long term care facility inherited from an elderly man with dementia. The deceased’s niece and nephews contested the will. They accused her of spotting a resident with few visitors and no immediate family and influencing him to sign a will in her favour. At the mediation, her lawyer would not let her answer the question about her relationship with the deceased. He said that was touchy feely stuff and not relevant to the law of wills and estates, which was clearly on her side. In caucus she told me that she had been the deceased’s friend for over 30 years.
    What would you recommend happen next?
    Defendant lawyer admitted he had been defensive and it was a mistake to not let his client tell her story. In the next session he apologized and she told her story in a clear, credible way.– It isn’t weakness to admit a mistake and apologize. Telling your story is not touchy feely stuff. It’s real human dynamics made visible.
  2. Defendant lawyer was well prepared, briefed, and had his client, the insurance adjuster rep, ready to settle. He gave an opening statement that said they were there to resolve the claim.
    Plaintiff lawyer was not ready to settle and did not state a position for his client, the insured. His opening statement was that they were there to listen because he hadn’t expected that the defendant would come with an offer. He said that coming with an offer would suggest he thought his case was not strong enough to take to court.
    What do you think the defendant’s lawyer said / did next?
    He worked with the plaintiff’s lawyer to get him to a place of negotiation. He explained to the insured how the process could go, offered cases in support, kept the conversation pleasant and non accusatory, got to everyone’s interests, and encouraged the plaintiff to consider the offer or make a counter offer through her lawyer. Def lawyer was courteous to plaintiff and lawyer throughout. It settled in a range that satisfied everyone and plaintiff lawyer did not lose face.– Take the opportunity to settle seriously enough to add value to the client’s options. Mediation is not about having a strong or a weak case. If you’re prepared, your case can be stronger than if you are unprepared. It’s in the work you do to get ready that weakness or strength will show at mediation.
  3. The night before a mediation of a lawsuit in its 10th year of life, I got a call from plaintiff lawyer.  He said of the other lawyer: “we loathe each other,  can’t be in the same room together tomorrow with our clients.”

What would you recommend happen next?

We mediated between the lawyers one hour before the clients arrived.  They had been so tough that they lost all respect for each other and the case went on 9.5 years longer than it needed to. There’s a balance between being a pushover and being so tough that no one can negotiate

with you. Find that balance and you won’t have to compromise because you’ll be able to negotiate a win/win.

Getting knowledgeable about how mediation works makes it much easier to achieve your mediation goals. Falling for the myths of mediation makes it much easier to fall into negotiation and mediation traps.

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