By Kevin Thomas
monthly series of short articles on successful mediation advocacy.
Tip # 5: “Be Real:
Condolences, Apologies, & Sincere Concern.”
has been written about the wisdom of making a personal connection with
the other side in mediation. The goal is to create a spirit of understanding and
collaboration, in the mutual task of finding a reasonable resolution
of the dispute. To this end, attorneys or parties may try to express
concern for the other party’s problems, in the form of condolences,
sympathy for an injury or problem, or even an apology.
How useful are such gestures?
When do they work well, and when are they counter-productive?
in any human communication, such comments during mediation draw people
together only if they are genuine.
Warming up to the other side because one is supposed
to in mediation, or to gain advantage in a monetary negotiation,
will be correctly perceived as a hollow gesture.
In other words: be real.
the following unfortunate example.
Plaintiff filed a complaint alleging egregious misconduct
(sexual harassment). In
six months of discovery, Plaintiff’s counsel attacked Defendant’s
credibility at every turn. In
mediation, however, Plaintiff’s attorney began with a well rehearsed
statement of gratitude for the defense agreeing to the collaborative
process, and expressed a heartfelt concern for Defendant’s pain in
the costly and contentious litigation process.
This attorney’s statement was not grounded in reality.
The attorney was not Defendant’s friend, was the cause of
much of the misery of litigation, and sought to gain financially by
the outcome. By an essentially false statement, he had established that he
would not speak the truth at mediation.
The task of finding resolution became even tougher (exactly the
opposite of the intended effect).
the joint session of a contentious case, it is far better to
acknowledge the bitterness of the battle, and the dramatic variance of
the stories told by each side. From
this position of reality, further comment on the wisdom of compromise
in the face of conflicting evidence or the uncertainty of a jury
verdict, will have the ring of truth.
are mediations in which an apology makes sense.
When liability is relatively clear and the loss is real, it may
be the one thing a Plaintiff needs to hear from a Defendant (or her
communication is confidential in mediation (Evidence Code § 1119), so there is no down side for the defense.
Missing an opportunity to acknowledge the obvious only
diminishes credibility, making it tougher for the Plaintiff to
consider arguments for reasonable compromise on the numbers.
of the best personal comments in mediation come directly from the
clients, corporate representatives, or others less directly involved
in the litigation. The
opposing lawyer is commonly perceived by the client as aggressive and
comments may also be better heard when offered informally, not in the
joint session. There is an element of theatrics to presentations in joint
session, even if well done. In
a recent case, a Defendant personally told Plaintiff at a break in
caucusing: “I hate this
whole thing. I am really
sorry you were hurt. I
hope the insurance company can work it out.”
The Plaintiff later told me:
“I didn’t expect that.
It was nice to know he cared.”
it does not feel sincere or is inconsistent with the history of the
dispute, do not fake it. Be
real, as you consider opportunities for genuine contact with the other
month I will explore one new tip to using mediation successfully.
McIvers is a full-time mediator since 1996, serving California and the Western
United States. He is a Fellow and
Vice President of the International
Academy of Mediators, and a Diplomate of the
of Distinguished Neutrals.