Very few neutrals, arbitrators or mediators, however astute, can truly appreciate what a party is feeling in the midst of mediation or court mandated settlement conference. Similarly, even the most committed and well-meaning counsel may not be able to provide the level of emotional support or guidance a client needs in this setting as they have never walked in the client’s shoes. Until you have been a party to a dispute yourself, not merely an advocate or a neutral, you may imagine, but have not experienced, the feelings of fear, anger, disappointment, frustration and confusion that parties bring to the alternate dispute resolution process. Having experienced all of the roles at play— arbitrator, mediator, defense counsel, plaintiff’s counsel and finally and most critically, as a party myself, one can understand and appreciate more directly the stress parties face in this process. If you have been a party, you are more acutely aware of how trying the experience can be and thus understand the value of considering that perspective. Bearing this in mind, neutrals and counsel can take some straightforward steps to make the experience more tolerable for all parties, increasing the chances of reaching a successful and time-efficient resolution.
Much like a patient in an operating room, the mediation process is largely foreign to clients and can often be deeply personal in nature. Therefore, it is the responsibility of the neutral and counsel to walk the clients through what the experience is going to entail and to provide moral support throughout the experience. To put parties at ease, counsel should prepare clients well before the mediation has begun. Counsel should make sure the client understands that the process is confidential and statements made in that setting cannot be used elsewhere. Parties should also understand that the neutral cannot dictate or force a resolution and that the mediator is not obligated to assure that a resolution is fair or approximates what a court might do. In fact, one of the benefits of mediation or a settlement conference is that a resolution can include elements that are outside of the types of relief a court can order. The provisions that can be crafted here can be more inventive than merely awarding damages or directing a party to perform a contract obligation. Furthermore, mediators have different styles and use several techniques to encourage the parties to reach a resolution. Some mediators are more collaborative while others come across like school yard bullies. Since clients will not mesh with every style of mediator, counsel should be well acquainted with the mediator’s practices and share that with the client before they are in the mediation or settlement conference. A client who is unprepared for a mediator using strong arm tactics may be caught off guard which can jeopardize the likelihood of a resolution.
