Civility and the Mediation Process
Civility is more critical to the mediation process than to any other form of dispute resolution. The reasons are several: First, unlike trial and arbitration, success in mediation depends entirely upon adversaries agreeing. No agreement; no deal. To no surprise, civility helps draw people toward a consensus, while incivility has the opposite effect.
Second, behavioral studies of client and attorney decision-making show that lawyers and clients often develop unduly optimistic views of their litigation prospects, often with unfortunate consequences.1 As these studies reveal, both clients and counsel predict their chances of success with levels of confidence that defy mathematic principles and common sense. In turn, they often turn down pre-trial settlement opportunities only to incur much less attractive adjudicated outcomes – both for clients and counsel-client relationships.
Third, other psychological studies, by no means unique to disputes, reveal patterns whereby we all seek out reaffirming information and discount contrary data. Often referred to as cognitive dissonance, this phenomenon impacts us all, particularly under adversarial situations, where the contrary position and the adverse parties are discredited in favor of our rosier predictions.
Now link these phenomena to the mediation process: Lawyers and their clients approach mediation with rose colored glasses and a proclivity to undervalue the other side’s position, and no one can make you do anything – not the mediator; not anyone. With these phenomena in mind, civility is critical to success – in initiating the mediation process, presenting your position, and conducting the mediation session.
Commencing the mediation process: Incivility is often the biggest hurdle to simply initiating a mediation. Having served as the general counsel of different companies, I encountered several instances where our counsel warned that mediation would be pointless precisely because the other side was incapable of being civil.
However, we decided to plow ahead anyway with mediation, trusting our team and the mediator to maintain decorum and focus upon a realistic discussion of strengths, weaknesses, alternatives and tradeoffs. These efforts consistently bore fruit, immediately if not soon thereafter, contrary to the prior predictions. Obviously, maintaining a civil discourse from the outset is the best set up. But even in the face of prior incivility (on the other side as well as your own), the mediation forum provides a fresh opportunity to civilly engage with the aid of a skilled neutral.
Presenting your case: Remembering that counsel and clients start out with rose-colored glasses and an unfavorable view of the other side’s position, imagine the impact of a mediation brief laced with invective as to parties and their positions. Briefs maligning the other side’s intentions, brimming with words like “frivolous”, “specious”, or “baseless” rarely change the adversary’s mind. Rather, they prompt the adversary to reply in kind, and the exercise devolves into both sides focusing on the slights and affronts rather than the merits of the dispute.
So what to do? Leave the incendiary language at home. First, focus on the essential elements of liability and damages – what’s there and what’s not. Concurrently, exercise the discipline to only argue what truly matters. Strong points are lost in the mire of arguing everything, and worse, minor points distract the mediator and impede the mediation.
Second, share your brief with the other side. While some courts mandate such exchanges, other courts and regional practice may not. Do it anyway. If your purpose is to convince the other side to compromise, this is one of your best means of doing so. Concurrently, holding back your best evidence rarely makes sense. Despite the protest that one side needs to hold their “smoking gun” in reserve, rarely does that protest hold up to scrutiny. To the contrary, cases settle because the parties have exchanged more, rather than less.
Civility at the mediation session: Practicing civility at the mediation session also produces unmistakable dividends, starting with your credibility with the mediator. While mediators take pride in our neutrality, uncivil behavior directed at the other side or the mediator is sheer madness. While your mediator does not decide your case, she or he will be positively or negatively impacted by the tone and level of professionalism counsel and their clients exhibit, with corollary effects on the mediation session.
Interestingly, the fear of uncivil exchanges has prompted many attorneys to avoid joint sessions altogether. But think about this tradeoff: The joint session may be your only real opportunity to speak directly with key decision makers about strengths and weaknesses, freed from concerns that what you say can and will be used against you. It is also an opportunity to show that you are not the demon or simpleton that maybe, just maybe, you have been described to be by adversary counsel. This is also your chance — shorn of invective and affronts — to tell the compelling story that you will lay out to a judge, jury or arbitrator if the case does not settle. Properly executed, this type of presentation will shape the mediator’s assessment, and with the neutral’s input, should prompt the adversary to reevaluate their position. It takes poise, discipline and confidence. But isn’t this what you have been trained to do?
 See, Donna Shestowsky, J.D., Ph.D., University of California, Davis School of Law, The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante, Iowa Law Review, Vol. 99., No. 2, 2014, http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=402976 ; Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision-Making for Attorneys and Clients (Springer 2010), pp. 29-48; Mark LeHocky, Navigating the Litigation Conversation: Confessions of a Litigator Turned General Counsel Turned Mediator, Best Law Firms 2016, 6th Edition, U.S. News & World Report, www.issuu.com/bestlawyers/docs/blf2016-cover-elements/52?e=3342698/30903449