R-E-S-P-E-C-T: Mediation Civility
Old sins cast long shadows. This idiom is true for Agatha Christie’s Monsieur Hercule Poirot and for counsel in mediation. Picture it…a conference room with parties, their counsel, and a mediator. Plaintiffs’ counsel is repeating, loudly, that the client’s damages far exceed the offer being made by the Defendants. Plaintiff is, of course, nodding. Plaintiff’s counsel refuses, again loudly, to reduce the demand and shouts that nothing less than five times what is being offered will even be considered. And each time the mediator or Defendant’s counsel tries to speak, Plaintiff’s counsel interrupts, shouting more reasons why the offer is unacceptable. This scenario may have happened to you because it happened to me. And as you might have guessed, the case did not resolve at the mediation table. Civility in mediation is not about capitulation or surrender.
The Institute for Civility in Government describes civility as follows:
“Civility is about more than just politeness, although politeness is a necessary first step. It is about disagreeing without disrespect, seeking common ground as a starting point for dialogue about differences, listening past one’s preconceptions, and teaching others to do the same. Civility is the hard work of staying present even with those with whom we have deep-rooted and fierce disagreements. It is political in the sense that it is a prerequisite for civic action. But it is political, too, in the sense that it is about negotiating interpersonal power such that everyone’s voice is heard, and nobody’s is ignored.”
Civility in the legal practice requires us to show respect. The California Attorney Guidelines of Civility and Professionalism adopted in July 2007 frame many of its recommendations in the context of respect: respect for your client; respect for the judiciary; respect for opposing counsel, and respect for the process. Treating all concerned with respect ensures that the parties, who are the ones with the dispute, are heard. Statistics gathered by the courts repeatedly show that even when a party is unsuccessful at trial, their satisfaction with the court hinges on being heard.
Mediation, a form of alternative dispute resolution, is often successful. Historically, some attorneys believe that agreeing to mediate shows weakness in the case. Some attorneys believe their case is a “slam dunk” and see no benefit to mediation. By this logic, no case should ever be mediated. But mediation is a proven success, and it is even more so when counsel demonstrates civility and respect. Why is that? Because counsel is trusted to handle a problem a client could not resolve on their own. And counsel is modeling behavior for a client who likely may not have ever been involved in litigation before. The client is, of course, emotionally invested in the dispute, and here’s where civility matters. A series of 2016 studies conducted by the Journal of Applied Psychology found that, like the common cold, rudeness is easily contracted, and exposure to one episode can have long-lasting effects, being the long shadow of those old sins.
Civility in Mediation also means counsel should not misuse the process. It should be reserved for good faith efforts to resolve the dispute and not for some tactical purpose such as to delay or for “free discovery” from your adversary. Using the process in this manner will usually make any later effort less likely to succeed and is a waste of resources when mediation costs are a significant outlay.
Your written submissions including mediation briefs should also have a civil tone avoiding ad hominem attacks or taking hard positions before actual negotiations start. If a participant disputes an opponent’s legal or factual points, the differences should be highlighted on the merits without demeaning rhetoric, commentary or labeling your opponent as “a liar.” Briefs should be exchanged according to the mediator’s scheduled deadline to avoid the sense that one side is “hiding the ball” and not acting in good faith.
As most courts now strongly encourage parties to engage in some form of alternative dispute resolution (ADR), finding ways to maximize its effectiveness is critical. Unfortunately, ADR often occurs on the eve of trial, when counsel and the parties have had lots of time to reinforce their entrenched views about the dispute and have expended attorneys fees and costs. If counsel present mediation to their client as a mere procedural hurdle to trial, then finding a resolution will be nearly impossible. If counsel, as is required under Evidence Code Section 1129, provides the Mediation Disclosure Notification and Acknowledgment at the onset of the retention, counsel can prepare their client for the eventuality of mediation and set the expectations for treating everyone involved in the case with respect. Counsel your clients about these civility standards, what to expect, how to act and how to address the adverse party and their counsel if they meet in joint session.
For mediators, preparation and having a plan to deal with uncivil behavior is also beneficial. Many mediators begin the process before the day of mediation with an introductory phone call to counsel. An uncivil counsel is likely to reveal their nature during the call which provides the mediator with the opportunity to set expectations of how counsel and the parties should behave. If a joint session is held or if the parties meet in separate caucuses, the mediator has numerous opportunities to gauge counsel and their clients’ behavior and model civility. Often a mediator will ask if counsel and the parties accept the “ground rules” if there is a concern about civility.
Civility applies to all types of mediations including those conducted virtually. Using Zoom to conduct a mediation does not suspend the standards of civility. Although it seems like common sense, your client should not appear for a virtual mediation wearing pajamas and eating breakfast with dogs barking in the background. Likewise, counsel should not be taking calls or playing Wordle on their cell phone. It is disrespectful and signals a lack of engagement in the process.
Finally, although there is no guarantee that a case will settle at mediation, the chances of success will increase exponentially if counsel and the parties treat each other with R-E-S-P-E-C-T.