By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 5: “Be Real:

     Condolences, Apologies, & Sincere Concern.”

Much 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?

As 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. 

Consider 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). 

In 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. 

There 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 representatives).  All 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.

Some 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 unreasonable.  Genuine 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.” 

If 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 side.

Each month I will explore one new tip to using mediation successfully.   Next month:  “Use the Mediator.”

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