Mediation Tip: Are there biases in negotiations?

August 26, 2015

Recently a lawyer told me that he felt mediators treat plaintiff lawyers differently than they treat defense lawyers. I was surprised and asked the genesis of his belief. He had worked as a defense lawyer for several years, and now represents plaintiffs in employment and other civil rights cases. He said he has noticed a perceptible difference in the deference and respect shown to his defense counsel, as well as to himself when he practiced on that side. I only recall one instances when there seemed to be a "defense bias" by a mediator in a case I was prosecuting. I am curious if others have felt that in their mediations? If so, please share those experiences.


 

Meanwhile as we explore this topic, I would offer 5 suggestions when someone feels that the neutral in their case isn't so "neutral":


First, communicate: Let the mediator know what your perception is. In the case I mentioned, the mediator came from a decades-long practice with a well respected management-side firm, before he got into mediation work. He was continually taking the defendants' side (I represented the plaintiff there)- and while it is normal for a mediator to appear to advocate the other side's case to you, he went beyond that. So I took him outside our room, and I said simply, "I feel you are biased in favor of the defense". He was taken aback, denied it, and we went forward. However, he clearly made more of an effort to "hear" our side, he did a good job and got our case settled. He and I enjoyed a long relationship as I hired him as my mediator and recommended him, until he retired. Communication and honesty go a long way- it doesn't have to be mean-spirited or rude, and it helps to frame your comments as "I feel".


 

Second, look inward: Are you doing your best job in putting forth your client's perspective and providing the mediator with evidence to help in the other room? In my cases, there are lawyers who do a great job in arming me with "ammunition" and tools with which to present their case to the other side; then there are those on the opposite spectrum who simply rant and rave in their briefs about how "wrong" the other side is and how "horrible" the harm was to their client. Meanwhile I am scouring the brief for the description of the damages - not there; for facts to back up the claims - not there; Merely stating that someone was "harassed" or "discriminated" against doesn't help. Spending pages in a brief about the other sides' ethical issues or bad acts that are unrelated to your client's damages, does not help. In other words, spend the time and space on your client's harms and the alleged wrongdoer's actions, less on the rhetoric and "embarrassing" things that should bring the other side to its/their knees.


 

Third, prepare your client to tell his/her story: During the mediation, the best "salesperson" is your client. Lawyers worry about their client not "performing well" or not being articulate. That is not important. Of course if your client cannot even identify what happened, or how harmed they are, that can be a problem. But not being a good orator, or articulate, or "slick" is not a bad thing...it is what makes your client human. But do prepare your client for the fact that he/she will have to talk to the mediator and communicate what happened that brought them to the mediation.


 

Fourth, be professional: I know there is a time and a place for yelling and ranting, but for those lawyers who use it as their "M.O." throughout the day, dismissing every thing the other side says as "lies", refusing to respond or address issues because they are simply "BS", they do not serve their clients as well as does the lawyer who listens, and has responses to the issues. Mediators are trained to handle, or at least innately capable of handling, the "out of control" lawyer or party. If it is because of true emotions at the time, that's fine. If it is being strategically done as a matter of course, or because of a belief that it will help force the mediator to get a better outcome, then it is misplaced. Ally with the mediator, because the mediator has to go into the other room with your responses, and simply saying "they are really angry" doesn't go far, especially since the other side is usually equally angry. (There are instances where well-timed "outbursts" have their purpose, but that's for another article).


 

Fifth, honesty is truly the best policy: Be candid about your weaknesses, not just pontificating about your strengths. That helps the mediator, but more importantly, transparency and honesty demonstrate integrity. That can go a long way in developing a trusting and respectful relationship with the mediator. I have had occasions where it was necessary to comment on my own perceptions in the other room. Being able to truthfully and credibly say that the party comes across as credible, or that the lawyer has been very straight with the mediator, can go a long way. So, while there may be instances where a mediator has a bias for/against one side (which I hope does not occur), there are ways to counter such biases and help you and your client turn a negative experience into a positive one.

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