Tell Your Story and Get Off Your High Horse: What Litigators Do Not Understand About Mediation

Tell Your Story and Get Off Your High Horse: What Litigators Do Not Understand About Mediation

5.7.2021

By Brandon Vogel

A talkative and combative litigator looking for a pound of flesh is unlikely to succeed in mediation.

An attentive attorney who treats opposing counsel with respect from the first introduction is, however, likely to succeed.

Panelists discussed the soft skills and proven techniques that help lawyers better handle mediations on the CLE webinar, “Effective Mediation Advocacy: Key Skills for Lawyers at the Bargaining Table.” It was the second in a three part series created by Michele Kern-Rappy, senior mediator and senior settlement coordinator, New York Supreme Court.

Sometimes, it’s the very basic lessons of kindness and respect learned as children that can help mediators succeed and ultimately deliver for their clients.

What to Say and What Not To Say

The natural instinct in litigation to argue convincingly is to start talking. In mediation, it’s the opposite.

Ross J. Kartez, chair-elect of the Dispute Resolution Section, recently attended a sales presentation and was floored by how good the salesmen were at listening to his needs. “It was so powerful that I was basically putty in their hands.

“What you need to do is you really need to start listening and you really need to focus on how you’re going to use the information that you get from the other side. You have to make them feel that that you’re listening to them in order to get to yes,” said Kartez.

Michael Starr, principal of M Starr ADR, said that the purpose of mediation is to motivate, not convince, the other side to do something different today than yesterday. Motivating someone to change their behavior by convincing them that you’re right is not going to work, much like negotiating with a teenager.

To approach mediation differently from litigation, you must tell your story and get off your high horse, Starr said.

Telling a story matters because it humanizes both you and your client to the other side. It’s similar to how doctors treat a patient, not the disease, he explained. “You want something like that to happen in mediation; you want the other side to treat your client as a person, not just a party.”

It’s common in disputes to attribute positive motives to yourself and bad motives to the other counsel. Telling your story is an antidote to these motives.

“If you can’t think of anything nice to say about the other party, think harder. Drop the ‘but;’ just say something nice,” said Starr. “And if you really, really, really can’t think of anything nice to say about the other side, at least acknowledge them for participating in mediation and thank them for working with you in that process.”

Keep it moving

Hon. John P. DiBlasi (Ret.), National Arbitration and Mediation, said that parties have to keep things moving in mediation. He loves when parties look to him as the expert and say “What is the next move?”

“I always say to them ‘listen you don’t have to do what I’m telling you to do, but I respect the fact that you ask me the question. You’re doing the right thing by using me. Here is my suggestion as to how you should move.’” said DiBlasi. He cautioned parties to look for omissions, false representations or false statements as red flags for counsel who have no intention of settling.

Jennifer Lupo (Lupo Law, Arbitration & Mediation) said the mediator is there to help facilitate a structured conversation to help the parties reach a resolution.

“Keep in the front of your mind that your client has to live with the ramifications of every action in the dispute process; that means from the minute that the dispute arises to the minute that it concludes,” said Lupo.

She advised that lawyers “do not fall in love with your client’s position.” Instead, speak out for your client’s interests in regard of that dispute. The position may change over time, as the mediation or litigation unfolds.

“At times it is very complicated, for you to ferret out what your client’s needs and wants really are because they are unable to communicate those to you because they’re in conflict, said Lupo.

“Greeting one another with respect, whether or not you agree with the opening statement, is imperative to moving a matter in a thoughtful manner,” said Lupo. “It really will go a long way towards building credibility with your opposing party and with the mediator; you’re going to need us to convey some hard truths to the other side and you’re going to also need us to convey some hard truths to your client.”

A surefire way to a successful mediation is to find something that both parties can say yes to and then build on those agreements, agreed both Lupo and Starr. It means less work in the mediation room.

Being strident and forceful does not always work in litigation and it certainly does not work in mediation, advised Starr. Being more gentle and accommodating can often get you a more positive result.