By LCA Senior Fellow David A. Schaefer
I. INTRODUCTION – HISTORICAL NOTE
Mediation, in a sense, dates back many hundreds of years to the days when village elders settled controversies in small towns throughout the world. By the early 1900’s, mediation was primarily limited to labor law as a method for resolving union/management disputes.
In the late 1980’s, state courts in certain states, e.g., California, began requiring mediation of civil litigation, but the mediation movement really did not gain much momentum until passage of federal legislation, 28 U.S.C. §651, 652 et seq. (1988). After that, federal courts adopted local rules requiring mediation, or some other form of alternate dispute resolution (“ADR”) in civil cases.
II. CHARACTERISTICS OF A GOOD MEDIATOR
A. Don’t Be Restless
A good mediator needs to be patient, as do counsel and the parties. A “standard” mediation can be tedious and time consuming. Indeed, I have a colleague who says nothing happens in mediations until 2:00 in the afternoon. While I don’t mediate in this fashion, I, wearing my advocate’s hat, completely understand what he means. Often mediators get blamed for the slow pace and/or length of a mediation, but, in my experience, counsel and the parties are equally responsible.
B. Don’t Give Up
A good mediator also needs to be persistent. Now, you certainly do not want to irritate counsel and the parties, but a “never say never” approach is recommended. Early in my career as a mediator, I adjourned a mediation when I believed an impasse, despite using a reliable technique (see below), could not be resolved. The next day I received a call from one of the attorneys who inquired as to why I had adjourned the mediation. After I explained myself, he said, “Well, we had more authority.” I inquired as to why he didn’t tell me that at the mediation, and he had no response. The case was resolved shortly thereafter through the use of “telephone mediation.” Perhaps if I’d been more persistent, the case would have been resolved, and a mediation settlement agreement executed, at the mediation itself.
C. Be Interested
A good mediator has to be a very good listener. To some parties, the mediation is their “day in court.” To some attorneys, the mediation is an opportunity to at least showcase their advocacy skills. The words that counsel and the parties speak to the mediator are important. These words, at times, are part of a lengthy speech, and it is tempting to let your mind wander. The mediator should not allow this to happen; somewhere in the lengthy discourse is likely to be a pearl or two that will move the mediation closer to a resolution. “Listen, listen, listen” is tantamount to “location, location, location” in the world of retail. To not listen, frankly, is not productive and is discourteous, certainly not a trait anyone wants in a mediator.
D. Be More Than a Messenger
In my view, which is not shared by everyone in the ADR community, a good mediator also needs to be evaluative, i.e., offer opinions when appropriate, rather than simply conveying positions of the parties. There are times when it is appropriate to simply convey messages of the parties, most notably when the mediation evolves into simply “trading numbers”, i.e., numbers exchanged with little or no explanation. The parties expect, and deserve, thorough preparation by the mediator. Thorough preparation, especially by a mediator experienced in the subject matter, leads to substantive questions and opinions. Communicating them can often help move a party to a position more prone to result in a settlement than otherwise. There is a caveat here – the mediator must maintain neutrality.
E. If You Build it, They Will Come
A good mediator must build trust among himself on the one hand and the parties/counsel on the other hand. Presumably, counsel already trust the mediator or they wouldn’t have selected her/him. The parties, however, only have the word of their counsel as to the mediator’s ability, trustworthiness, etc. So, how does/should the mediator accomplish this task? At least two commentators, believe one method is through “rapport talk.” “Rapport talk” is conversation, sometimes even unrelated to the mediation itself, that helps to develop and build a relationship. This is contrasted with “report talk”, the purpose of which is to share information. Regardless of how it is done, there is no question that a mediator must find a way to build trust.
III. TRIGGER POINTS
An important, but underrated, factor in mediation involves timing. I have mediated cases at many different times in the dispute process, and my experience, follows.
A. Before the Sword Falls
Pre-litigation mediation seemingly has become more common. My own experience is that the probability of settlement at this point is substantially less than 50%. This is because, in my view, the parties and their counsel have not: fully explained their claims and defenses, lived long enough with the dispute, spent enough time and money to foster resolution, and are not emotionally ready to resolve the matter. Nevertheless, some disputes can be settled before or without litigation, and it is worth a try.
B. Dip Your Toe in the Water
Some mediations occur after the pleadings are complete, but before any discovery has been conducted. My experience is that the settlement rate is not much better than pre-litigation mediation for the same reasons. Mediation at this point does have a slight advantage in that at least plaintiff’s legal theories and defendant’s defenses are known and can be explored in the mediation statements and at the mediation.
C. Let’s Save Money
A fair number of mediations occur after paper discovery has been completed but before any depositions have been taken. This is usually a good time for a mediation because many of the facts have been disclosed in the documents, and the cost of depositions, easily the most expensive discovery tool especially in complex cases, has yet to be incurred. The potential cost of proceeding through trial is probably at its highest point it will ever be in the dispute, and this fact can be useful in moving a dispute to resolution. There is usually a better than 50% chance of reaching settlement.
D. The Pressure is Mounting
Another frequent trigger point is after depositions are completed, but motions for summary judgment have not been filed. By this point, virtually all facts are known to counsel and the parties. The seemingly inevitable motion for summary judgment or partial motion for summary judgment is yet to be filed but has probably been threatened by one side or the other. If so, it can be used as a talking point by the mediator. In my experience, many cases are resolved at this juncture.
E. Uncertainty Can Help
Many mediations occur after summary judgment(s) have been filed, but no decision has been made by the judge. Most mediators agree that the uncertainty of a ruling is an advantage in mediation. While I understand this viewpoint, I do not totally agree with it. A motion for summary judgment that has been decided provides a clear signal from another neutral, i.e., the judge, as to her/his view of the dispute. This can be very valuable despite counsels’ confidence in their ability to persuade the jury. Typically, a mediation at this point occurs within 4-6 weeks of the trial date so, depending upon the complexity of the case, there could still be a lot of expense to be incurred, which usually helps the case get resolved. In the less complicated cases, however, the cost of preparing for and trying the case is not so significant. Accordingly, a mediation at this point can sometimes be “too late.”
F. Don’t Let the Show Begin
Mediations, after a ruling on summary judgment, within 2-3 weeks of trial, in my experience, do not occur frequently, but the settlement rate is surprisingly high. Eve of trial mediations tend to occur in less complicated cases as counsel, insurance representatives, and the parties become more concerned about the possible outcome.
IV. WHAT TO DO AT IMPASSE?
Mediators must be able to apply different techniques when the parties are at impasse or near an impasse arising out of traditional (ping pong style) negotiations. If your mediator doesn’t suggest these, you should.
A. Brackets – The Range of Resolution
When I first started serving as a mediator years ago, I did not like using brackets because the parties and their counsel immediately focused on the mid-point of the proposed bracket, which, in part, defeats the purpose of using them. The real purpose of brackets is to inform the other party of the range within which you are willing to negotiate.
Bracketing is a type of high-low bargaining. In a recent mediation, where plaintiff originally demanded $2 million and defendant originally offered $100,000, the negotiations stalled after three rounds. Plaintiff then proposed a bracket with the high number of $1.7 million and a low number of $600,000. Defendant countered with a bracket of a high number of $600,000 and a low number of $300,000. The parties then returned to single number demands and offers, and the case was settled. Brackets accelerated the timing of the settlement. In more recent years, I have found brackets to be useful tool to speed up the negotiations, particularly when the parties or their counsel are becoming impatient.
A simple variation of this approach is when one or both parties ask the mediator to propose a bracket. Not surprisingly, this is referred to as a “mediator’s bracket.” In making such a proposal, the mediator should be guided primarily by the prior negotiations.
B. Mediator’s Number / Mediator’s Proposal – After All, You Picked Her/Him
This is usually used when traditional negotiations and/or brackets do not resolve the impasse. If this technique is used at the mediation, I usually propose only a settlement amount and refer to it as a “mediator’s number”. If it is used after the mediation, usually the next day, I communicate my proposed settlement amount and other terms by email and refer to it as a “mediator’s proposal.”
In either situation, the mediator proposes a single number to resolve the case. The responses are kept confidential. If both sides accept the proposal, then the mediator informs both sides that there is a settlement. If one side accepts the proposal, and the other side rejects the proposal, the party that rejects is not told that the other party accepted. The party that accepted is told that the other party rejected, and both sides are told that no settlement has been reached. If both sides reject, the mediator simply tells both sides that no settlement has been reached.
C. Private Numbers - I’ve Got a Secret
With this technique, both sides provide the mediator with their near final numbers. The mediator keeps them confidential and decides if the parties are within striking distance. If they are, the parties are told that they are within striking distance, and then typically the parties return to traditional ping pong negotiations.
If the parties are not within striking distance, then they are told that this is the case and that there are now several options. The one that is chosen is often a function of the length of time spent at the mediation. The most common one is a mediator’s proposal made the next day by email. The parties can also return to traditional negotiations; they can try a mediator’s number or they can adjourn for the day and let the negotiations “rest” to be continued another time either by phone or a second mediation session.
In this approach, the mediator usually determines what constitutes “striking distance”. A variation of this approach is to have the parties agree on what constitutes striking distance. The advantage here is that the parties have more control over the process. The disadvantage is that it removes the element of the mediator’s judgment, which is somewhat counter-intuitive because the parties picked the mediator to guide the process.
D. Med/Arb – ADR’s Split Personality
While there are too many forms of med/arb to cover in this article, this approach typically involves arbitration after mediation has not resulted in a settlement of the case. The arbitration sometimes is a full blown traditional arbitration hearing that leads to an adjudicated decision by the arbitrator who can be, and often is, the same person who served as the mediator. Using the same person for both causes concern because the parties and their counsel worry that facts disclosed during the mediation, but not admitted into evidence during the arbitration, will be used by the arbitrator to decide the case. I suggest to you that this concern is overblown and can be solved simply by waiting 60 days to have the arbitration hearing after the mediation has been completed. By that time, most mediator/arbitrators will have forgotten what they have been told in the mediation and will not review their mediation file prior to or during the arbitration.
E. Arb/Med – Split Personality Revisited
This approach reverses the sequence of the previous one. After an arbitration hearing, the arbitrator prepares an award but does not disclose it to the parties. The parties then mediate their dispute, and if the mediation results in a settlement, the matter is concluded with an executed settlement agreement. If the mediation does not result in a settlement, the award is disclosed and is binding. This process provides more information to the mediator and the parties going into the mediation and obviously avoids the issue of the mediator using information learned in the mediation when deciding the arbitration. The primary disadvantage to this process is cost.
F. Arb/Med/Arb – Are You Kidding
This approach begins as an arbitration, and either at a break between hearing days or simply because of the arbitrator’s intuition, a mediation is conducted. If the mediation does not result in a settlement, the arbitration is reconvened so that the hearing can be completed and an award can be issued. If the mediation results in a settlement, the matter is concluded with an executed settlement agreement.
V. WHY MEDIATIONS “FAIL”
The ultimate goal, of course, of a mediation is to resolve the dispute at the mediation. When this does not occur, most litigators and their clients will say that the mediation “failed”. To view mediation in this fashion is to, at least sometimes, elevate form over substance.
A. Setting the Table
Some mediations do not settle on the day of the mediation, but the “table is set” for a settlement, either by the judge in an upcoming settlement conference or by the mediator through subsequent negotiations. This has occurred in many of my mediations, and without the mediation itself, a settlement would not have been reached. Thus, it is not accurate to say that the mediation “failed”.
B. Hunt for Information
Even a mediation that “only” sets the table for settlement, typically results in the exchange of information previously unknown to counsel and the parties. While this is sometimes characterized as “free discovery”, such characterization is not accurate because the clients are paying their counsel, the mediator, and spending their own time at the mediation. Nevertheless, information received at a mediation is typically less expensive than that obtained through the discovery process. This is another example of the mediation not being a failure.
C. “Lack of Authority”
The reason the heading is in quotes is because, as a mediator, one never knows if there actually is a lack of authority or whether that is an excuse for not wanting to continue the mediation. If it is sincere, then a phone call to a supervisor or a chief financial officer can be made. Often, such phone calls are successful in allowing the mediation to continue and move toward settlement. Before the advent of cell phones, another statement frequently heard was, “I can’t reach anyone with more authority.” On rare occasions, that is still true, but I am usually skeptical when told that such a person cannot be reached.
D. Seeking Victory
It would seem obvious that no party “wins” a mediation. Nevertheless, some parties and their counsel come to a mediation with the goal of “winning”, which apparently is measured by the amount saved from what the defendant is actually willing to pay or the amount increased over what the plaintiff was willing to accept. Another type of “win” for the defense is to spend most of the time dwelling in the weeds about the merits without making any serious monetary offer. From the mediator’s standpoint, this is extremely frustrating, and when I encounter this, I wonder why the defendant agreed to mediation. The converse can be, but in my experience is less often, true. That is to say that plaintiff may also get lost in the weeds without making even a semi-serious demand until near the end of the day.
E. Let’s Blame the Mediator
If a mediator lacks the characteristics referred to previously, supra pp. 1-3, and/or lacks knowledge of impasse breaking techniques or both, the mediation may fail. Astute counsel, however, even when faced with such a mediator, can prevent the mediation from failing by being aggressive with their offers and counter-offers and making suggestions to, or even instructing, the mediator how to proceed. In the latter situation, the mediator actually becomes a facilitator simply carrying messages from room to room and occasionally offering an observation of her/his own.
F. It Does Happen
In my experience, some mediations are truly failures. Invariably, it is because one side (or in a multiple party mediation, several sides) came to the mediation with virtually no intention of resolving the case. They view the mediation as a “hoop” to jump through on their way to summary judgment, trial, or settlement on the eve of trial. This type of defendant perceives the eve of trial to be the point at which it will have to pay the least amount or, for a plaintiff, the highest amount it can obtain with neither side truly taking into account the amount of time and money spent to get to that point. I can’t speak for other mediators, but I find this type of attitude very frustrating. Several years ago, I actually had an attorney tell me, about two hours into the mediation, that his client had no intention of settling and simply agreed to mediate to obtain “inexpensive discovery”. Nevertheless, he continued the mediation process for approximately an additional two hours before he was willing to adjourn.
Another reason mediations fail is because of unrealistic expectations. Relatively recently, I mediated a case on two separate occasions. At the end of the second mediation, the parties agreed to consider a mediator’s number. The defense accepted the mediator’s number, which was rejected by plaintiff. The case went to trial, and the jury awarded $25,000 less than my mediator’s number. Thus, I wasn’t the only one who viewed plaintiff’s expectations as unrealistic.
A. Frequency – They Are Here to Stay
The most obvious trend regarding mediation is that virtually every civil case is mediated at least once. Indeed, many civil cases are mediated twice, the second session often by Zoom or phone. It is fair to say, especially with complex disputes, mediation can be more of a process than an event.
B. Opening Statements – They are Vanishing
In the early years of mediation, it was common for counsel to make jury style opening statements. This practice, quite properly in my opinion, has fallen into disfavor, and the overwhelming trend is to dispense with this type of opening statement. Alternatives to this type of opening statement are informational openings, i.e., non-inflammatory statements, a simple meet and greet session or even no initial joint session at all.
C. Initial Joint Session – Nice Not Knowing You
There is somewhat of a trend to dispense with the initial joint session and commence the mediation immediately with caucus sessions. This works well particularly in highly contentious cases, such as shareholder disputes and “business divorces.” The reason for this is that the parties, and sometimes even their counsel, are so angry about the facts and the litigation that to have them sit in the same room is simply not a good idea.
VII. GENDER DIFFERENCES IN MEDIATION
Gender may matter in dispute resolution, but other factors, especially in such an interactive field of behavior, may trump or smooth out or make more complex any gender differences in the pursuit of dispute resolution. In short, gender matters, but context may matter more.
A. The Literature
This sub-topic is much too large for a detailed presentation, but I will try to mention what I view as some of the more important points. The literature is vast regarding gender differences in negotiation. Surprisingly, the literature is sparse regarding gender differences in mediation, which, of course, is a type of negotiation, but the presence of a neutral substantially alters the model. Indeed, the neutral is part of the context referred to by Ms. Menkel-Meadow, a leading author in this field.
Stated concisely, the literature on negotiation differences is not all that enlightening. It refers to the stereotypes of women being more caring and collaborative while men are more direct and combative. It refers to men being more assertive and tending to try and dominate while women are less assertive and more subtle. And, it bolsters the idea that men tend to interrupt more while women are more patient and, frankly, more polite.
Menkel-Meadow’s article does, fortunately, focus on gender differences in alternate dispute resolution. A significant point made by Menkel-Meadow, which she refers to as “context”, is the number of variables at issue in trying to assess gender differences in mediation. What is the nature of the dispute? Is the mediator male or female? Are the parties male or female or a mixture? Are the lawyers male or female or a mixture? If a mixture, is the plaintiff represented by a male or female? The defendant? In a multiple party mediation, do the female lawyers outnumber the male lawyers? Do the female parties outnumber the male parties?
Tamara Relis found that women, as parties in mediation, were more concerned with emotional, as opposed to compensatory, aspects of their cases and were more likely to want defendants to attend the mediation with a hope for direct communication about legal and “extra-legal” aspects of their disputes.
The studies as to female mediators versus male mediators are even more rare than those already referred to. Relis found that female plaintiffs were more likely to be overpowered by a male mediator than were male plaintiffs, and she acknowledges that gender differences are still part of the experience.
Some words about my own experience. An obvious, but important, point is that generalizations are dangerous. Thus, I will avoid them, as the following observations are specific to mediations where I was either the mediator (a substantial majority) or counsel for one of the parties.
A good number of the cases in which I have served as a mediator involved construction disputes over expensive homes. All the mediations, except one, were attended by husbands and wives, as plaintiffs. Without question, the wives (most of them were working outside the home) had stronger feelings, perhaps grounded in emotion, than the husbands. Without question, they were tougher negotiators. While they started out as less direct, conforming to one of the stereotypes, they certainly did not remain that way as the mediations progressed. In those mediations, all parties were represented by male attorneys. Had there been some female attorneys (see below), I tend to think that the process would have been somewhat different, but I’m not sure the outcome would have changed.
I have also mediated several cases with husband and wife teams as defendants. In those, I found the female part of the team to be somewhat happy, as best I could tell, to let their male counterparts and their counsel do most of the talking.
As to female counsel, I have seen no discernible differences between them and their male counterparts.
As an advocate, I have represented parties where the mediator was female, although the sample size is small. The female mediators were slightly calmer than their male colleagues and more nuanced.
Mediation is obviously here to stay. It is a serious process. When handled properly by all involved, it saves time, money and, not the least of all, stress.
David A. Schaefer is a principal at McCarthy, Lebit, Crystal & Liffman Co., LPA. David devotes the majority of his practice to product liability, business litigation, professional liability, employment discrimination, construction litigation, and he has extensive experience in complex business and tort litigation, addressing a diverse spectrum of personal and business grievances.
David represents both public and private companies located in Ohio and nationwide. His seasoned judgment and fair mindedness often find him acting as an arbitrator and mediator. He recently served as a mediator in a six-party construction dispute with three personal injury actions and two related insurance coverage issues, all of which were resolved in approximately one day of mediation. David is a member of The National Academy of Distinguished Neutrals, an invitation-only alternative dispute resolution professional association.
He has prevailed before juries in both state and federal courts and he has been selected by state and federal judges to be a Life Member of the Eighth District and Sixth Circuit Judicial Conferences. David is a frequent lecturer on topics including deposition practice and insurance related issues. From 1988-2015, he taught annually at the National Institute for Trial Advocacy in Chicago, Illinois. David is a Senior Fellow of the Litigation Counsel of America.
 An earlier and slightly different version of this article was first presented to members of the Ohio Women’s Bar Association in February of 2018.
 See also 28 U.S.C. §473 (1990).
 Most federal courts already had local rules regarding arbitration, but new forms, such as Early Neutral Evaluation and Conciliation, were adopted. Most state courts then followed suit.
 As a mediator, maintaining neutrality is often taken for granted by the parties and their counsel. This is not surprising since counsel likely described you as a “neutral”. Staying neutral, however, can be difficult when a party or counsel take an unreasonable position.
 Jan Frankel Schau and Nina Meierding, Negotiating Like A Woman – How Gender Impacts Communication Between the Sexes available at https://www.mediate.com/articles/schaumeierding.cfm
 A variation of this is sometimes referred to as “online mediation” in which both sides (rather than the mediator) submit confidential settlement offers. If the offers fall within a certain range, the case is settled half-way between them. See New Trends in Mediation, Texas Trial Handbook §5:12 (3d ed.)
 These techniques (brackets, mediator’s number/proposal, private numbers) are considered hypotheticals. If they don’t result in a settlement, it is as if they never occurred.
 Similar to judicially conducted settlement discussions during trial.
 This is not only the trend in Ohio, but also in other parts of the country. See, Mediation Trends in West Virginia, 2010 Jun., W. Va Law 48.
 Carrie Menkel-Meadow, Women in Dispute Resolution: Parties, Lawyers and Dispute Resolvers, What Difference Does “’Gender’” Make? 18 No. 3 Disp. Resol. Mag. 4 (Spring, 2012)
 See e.g., F. Peter Phillips, Gender and Negotiation: An Interesting Study of a Perennial Topic available at http://www.businessconflictmanagement.com/blog/2009/12/gender-and-negotiation-an-interesting-study-of-a-perennial-topic/
 Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (2009).
 Id. at 220-225