By James L. Goldsmith, Esquire
I have attended a great number of mediations, both as mediator and as counsel to disputants. I have learned that success, in either role, calls for tact and skill different from what is called for at trials, arbitrations, negotiations and other arenas. For example, an attorney whose initial statement in a mediation conference is to go on about his/her client’s ironclad position is likely to alienate the opposing party and damper chances for a positive outcome. This article, however, focuses on the role of mediator.
Mediator training courses abound. I have attended some that are weaker than others, but I have always walked away with positive tips that I have employed in my own mediation protocol. I have learned just as much from observing mediators at many sessions I have attended as counsel to one of the parties. Contrasting the good with the bad helps to isolate practices that are worthy of adopting.
In one week, several months ago, the contrast between good and bad was greater than I had ever experienced. The mediations were two days apart - the good one first. That mediator was a lawyer with an exceptional record of resolving the most difficult of cases. He had spoken to the attorneys individually several weeks earlier and was well versed on what to expect. He also brought donuts and coffee!
Nothing in this mediator’s repertoire was particularly unique. We were moved into separate rooms rather quickly and shuttle diplomacy commenced. The case did not involve extreme sums of money, but the divide between the parties was great. The mediator had us reserve the entire day; we began early and successfully concluded just after 7 p.m. - after one of the attorneys found a neighbor to retrieve her children from a school event. As we packed our briefcases, the mediator leaned over to me and whispered “the secret is to never give up.”
Two days later I again attended a mediation also conducted by a lawyer mediator as counsel to one of the disputants. This mediator had not reached out to the parties prior to the conference and had not sent out any specific instructions regarding pre-mediation submissions. The mediation was scheduled for 3 p.m., which should have tipped us off that the process was doomed from the start. The session began with the mediator ranting that he did not know why he accepted the task and that he was hopeful that it would conclude quickly. Surprisingly, he did not separate the parties until one of the attorneys asked if we could take separate rooms and have the mediator communicate the changing positions as negotiations continued. At that point the mediator uttered something to the effect that an hour had passed and that it was his experience that if mediation did not resolve in the first hour, it was likely doomed! He was right - I blame him and will never use that mediator again for anything!
I have taken from that experience what I already knew: hard work and long hours may be necessary. A mediator who is prepared to go the distance will likely get the job done. Add your skills to this mindset and you will be a successful mediator.
Mr. Goldsmith is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline. He may be reached at realcompliance.com.