I had an interesting experience last week. I had two 1/2 day mediations scheduled on two different days. Both were arising out of claims of disability discrimination where the employer allegedly terminated an employee soon after he/she returned from a medical leave of absence. In one of the cases, the lawyers had developed such antagonism towards one another that they refused to meet at all. That case dissolved at 8 P.M. with a mediator’s proposal which was acceptable on the principle term, but not on the minor terms, and because the parties had refused to meet all day, by 8 P.M. there was not enough good will to negotiate through the fine points. Two days later, that settlement appears to have fallen apart. In the other case, the Plaintiff’s lawyer and Defendant’s lawyer had not yet met. I introduced them, they shook hands, met one another’s clients and by 2:00 were each entirely satisfied with the negotiated settlement. At that point, I brought the two lawyers together to hash out the terms and we were all leaving the office within an hour. The terms of the agreement were nearly identical to the mediator’s proposal the day before, but the process and the ease with which the latter was negotiated could not have been more disparate.
The only conclusion I can reach here is that in the second case, the attorneys had agreed to conduct themselves civilly, openly and with professional courtesy and collegiality. Like the day before, the two counsel were one man, one woman, about the same age and years of experience, one big firm and one sole practitioner. Apart from that, I assume it was personality and demeanor that set the two cases apart. So my pitch for clients of mediators (and mediators) is a simple one: approach each negotiation as though you have just been introduced to your negotiating partner, not your adversary. Your clients have asked you to participate in the negotiation not as warriors but as peacemakers–to get the best deal they can get without having to go to trial. If you begin to see your adversary as an ally, with the same goal as you have (to bring the litigation to a satisfactory end for your client), your days will be shorter and you will sleep better at night. Or at least your mediator will!