MEDIATION TIP #6 – WHAT’S GOING ON IN THERE?
July 30, 2014 by Glenn Loewenthal
Will Ferrell meatloaf scene (click to view)
I was speaking at a recent seminar where a question was asked by a Plaintiff’s lawyer: “Why do you spend so much more time in the defense room than in the plaintiff room; What are you doing in there?” I couldn’t help but laugh while thinking to myself that this is the same question, in reverse, from defense lawyers who think I spend more time in the plaintiff room. Before we discuss the answers to these questions, I first want to say that there is no pattern I have noticed in spending more time with one side than the other. Each case is different, and in some cases more time needs to be spent in the plaintiff room and in some cases more in the defense room.
Now, to answer the question. As mediators, we are doing many things in the other room. First and foremost, we are listening. We are listening to the lawyers, listening to the parties, listening to the adjusters, listening to anyone who has anything to say. In the initial caucus, it is the mediator’s job to learn as much as possible about the important facts of the case, the motives of the parties, and the objectives of the parties. Sometimes one or both sides don’t say much in the opening statement, though I think that is a mistake (see Mediation Tip #4). If the lawyers don’t provide much information in the opening, the mediator has to spend more time learning about their case. This is why the first caucus is the longest.
Another thing the mediator is doing is developing a rapport and relationship with the people in that room. For example, in the Plaintiff’s room, I want to make sure the plaintiff is at ease with the process and with me and my role. 99% of the time this is the first time the plaintiff has ever been through a mediation. It may be old hat to the lawyers and adjusters, but it is a nerve wracking experience for most plaintiffs. Not only do the plaintiffs need to be at ease with the process and the mediator, they need to know that their attorney is also on their side and the mediator can help with that. The mediator can also help the plaintiff to understand that the people in the other room are also invested in the process and that they are there in good faith to resolve the case. Once everyone in the plaintiff’s room is on board, the mediation will have a better chance to resolve.
In the defense room, the mediator is doing the same thing. We are building the relationship with the lawyers and adjusters and/or corporate representatives, many of whom we have never met before. While many defense cases are “round tabled” before the mediation, many are not. There are many mediations where the defense lawyer and the adjuster are not on the same page. The mediator needs to listen, ask questions, and find out why. One of the mediator’s most important jobs is to make sure that everyone in the defense room is on the same page.
A mediator’s job is much more than a courier of numbers between rooms. The mediator’s job is to build a consensus by the end of the day. In order to do that, we must time whatever time is necessary building relationships, listening to facts, ideas and concerns, and making sure everyone is on the same page and at ease. Tensions can build during a mediation session, and the mediator may need to spend more time in one room than the other keep things calm and running smoothly. We want to put out the fires, not throw more gasoline on them. Hopefully, this mediation tip will help you understand what is actually going on in the other room.