Professional Mediator: A Distinction that Makes a Difference
June 2006
In April 2006, a remarkable thing happened
at the Spring Conference of the American Bar Association's Section of Dispute
Resolution in Atlanta. A distinguished lawyer unwittingly proved that the mediation
profession has a spectacular future.
by Jeff
Kichaven *
Jeff Kichaven,
A Professional Corporation
It was during a workshop on corporate America's expectations of professional
mediators. The moderator asked a panelist, the general counsel of a household-name
company, what he looked for in a mediator. He responded that he wanted "a judge"
with this attribute, "a judge" with that strength, "a judge" who lacked weakness.
His answer went on for minutes, but he never mentioned the professional mediators
who were the subject of the question.
I raised my hand and asked this general counsel, as innocently as I could,
whether the concept of "professional mediator" existed in his mind and, if so,
how he distinguished between a "professional mediator" and "someone who used
to be a judge." The general counsel answered, after a long stare and a furrowed
brow, slowly and honestly, "I don't know. I never thought about it."
At first, I felt angry. We professional mediators have worked so hard to
establish mediation as an independent profession! Despite our efforts, this
general counsel, highly sophisticated in so many other respects, was clueless.
But then I was pleased. If lawyers even at that level have no clue about the
benefits of using true professional mediators as opposed to people who merely
used to work as judges, then our profession, already vital and strong, still
has lots of room to grow.
Mediation versus Arbitration
The initial confusion between professional mediators and people who used
to be judges is simple to explain. Mediation is often mentioned in the same
breath as arbitration under the umbrella term, alternative dispute resolution
(ADR). Arbitration is a lot like judging. Since judges are generally good at
arbitrating, many lawyers assume that they must be good at mediating as well.
But that is not so. The principal "skill" that former judges bring to the
mediation table has limited utility at best. Former judges are supposed to be
able to "value the case." Nobody, though, is better able to "value the case"
than the lawyers handling it, who have lived with it for months or years. So
a mediator's ability to assess "value" is superfluous. With one exception relating
to client relations, that is critical to the professional mediator but generally
lost on former judges. Because, to paraphrase Justice Frankfurter's famous expression
from SEC v. Chenery Corp., 318 U.S. 80, 85 (1943),
to say that a case has a "value" only begins the analysis.
To your typical former judge, the ability to "value" the case is the alpha
and the omega of his service. Dialogue between the parties is a charade. The Los Angeles Daily Journal's April 17,
2006, profile of a distinguished former state court judge presents the standard
approach: "I try to get all the movement I can before I jump in and say how
much I feel the case is worth."
This man was an excellent judge. But his approach is not exactly the apotheosis
of mediation technique. That's because the lawyers already know everything that
these judges can tell them.
I recently asked one of Los Angeles' most well-respected litigators whether,
in a mediation, a retired judge had ever told him about a weakness or value
in his case of which he was not already aware. A long pause, and then, "Never."
Why, then, pay anyone big bucks to tell you things you already know? Another
long pause, followed by, "It is sometimes a matter of emphasis. More often,
it helps me explain things to my client."
This litigator stated obvious truths. In most cases, the range of highly-probable
outcomes is pretty narrow. The lawyers can generally check their self-serving
biases well enough to agree on that range, and the mediator generally sees it
too. Yet clients often have a hard time getting it, even the senior executives
of major businesses represented by the senior litigator to whom I posed these
questions.
Here is where the skill of the professional mediator takes over. Former judges
describe weaknesses, declare "case value," try to impose that value on the parties,
and draw their service to an end. But for the professional mediator, this is
where the real work begins. Once "case value" is articulated, the professional
mediator helps lawyers bring clients to higher levels of understanding and clearer
points of decision than the lawyer was able to achieve alone.
The Mediator's Skills
When cases come to a mediator, they are, by definition, at impasse. The parties
may be stuck for reasons that are emotional (anger, ideology, high or low tolerance
for risk), financial (need for cash, ability to tolerate defense costs or verdict
exposure), or otherwise. Through skillful and subtle choreography of conversations,
professional mediators help clients think about these barriers to settlement
in new ways. Most all the time, and especially when clients come voluntarily,
they move beyond these barriers, face up to their weaknesses and risks, and
settle. Sometimes they move so far beyond these barriers that they make forward-looking
deals. Occasionally they decide to bet against the odds and continue the fight.
In any case, they understand what they are doing and why. They do not feel bullied.
With this degree of control, clients feel greater satisfaction, not only with
the outcome, but also with the process and the performance of their lawyers.
Critically, the skills of the professional mediator are completely different
than the skills of a judge. The job of the judge is to judge others. The skills
of a judge serve a system where juries of strangers follow preset rules and
make decisions that are supposed to be consistent and predictable. Judges, therefore,
master rules of evidence to restrict conversation and help juries reach these
consistent, predictable results. Hearsay, relevance, opinion—these and other
limiting rules focus the jury on legally-germane issues and consistent results.
Skilled application of these rules is necessary for the professional judge.
Mediators are unshackled from that system. The job of the mediator is not
to judge at all. The mediator's job is to stay curious and leave decision-making
to the parties themselves, based on their own standards. Results are individual,
spontaneous, and sometimes quite unpredictable. So mediators and judges direct
conversations differently. Good mediation technique helps parties gather and
exchange whatever information is important to them. That information can address
the emotional, financial, and other barriers to settlement. It can go far beyond
the "relevant" and "admissible." So, skill in applying the rules of evidence
is not only unnecessary, it can be destructive. A different skill in guiding
communication is required.
Being a good mediator, therefore, has very little to do with having been
a good judge. Frankly, it also has very little to do with having been a good
lawyer. Just as there are a lot of former judges who are lousy mediators, a
lot of former lawyers stink at it too. Additionally, there are excellent mediators
who never even went to law school, much less served on the bench. The quality
of a mediator depends on the ability to take the litigating lawyers' own evaluations
of cases and test whether, in the eyes of the clients, those evaluations make
sense logically, feel right emotionally, and seem doable practically. When those
tests are met, cases will settle.
Sure, there are things that judges, lawyers, and others learn from their
experiences that serve them well as mediators. To be effective as a mediator,
your experience and training must enable you to engage in intelligent conversation
about the "value" of the cases you mediate. Otherwise, the marketplace will
pass you by. But necessary though that knowledge may be, it is not sufficient
to perform professional mediation.
Some former judges have taken the training, gained the experience, and joined
the mediation profession. Many others rest on their laurels, on the "weight
of the robe" and the "force of the gavel," and cannot go beyond the raw evaluations
that good litigators already know. If all you are looking for is the ability
to call back to a boss at the home office and say, "Judge X told us the case
is worth Y dollars," maybe you don't need a professional mediator. But sophisticated
users are left flat by this two-dimensional approach.
The sophisticated litigator knows that mediation offers more. The professional
mediator, whether formerly a judge, a lawyer or something else, manages the
conversation to help the parties surmount the barriers to settlement, and reach
a deal in a reasonable range which the parties were not able to accept without
the mediator's intervention. Identifying that range, which the parties generally
already know, is not enough.
Conclusion
So the ABA workshop in Atlanta ultimately leaves me with a smile. Legions
of otherwise-sophisticated lawyers are not yet fully aware of the benefits of
professional mediation, or how to distinguish the professionals truly available
to provide those benefits. As professional mediators expand our efforts to educate
our customers, the demand for—and satisfaction with—professional mediation can
only flourish.
*Dr.
Mark Goulston participated in the development of many of the ideas expressed
in this article.
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