Brown: It’s never too late to learn, especially from fellow mediators

Brown Brown

“It’s what you learn after you know it all that counts.”

–John Wooden

By Mike Brown

While it’s difficult for an IU Hoosier to cite to one with such an obviously inferior education, it’s hard to dispute the wisdom of this observation from one of the great coaching minds of all time. His ongoing effort to take competitive boys from different backgrounds and circumstances and lead them to compromise and cooperate for a greater good is not unlike the facilitation that takes place in the mediator’s world. Gee, can’t we all just get along?

Although I’ve been at this law thing for a while and have mediated cases over the last 10 years, I always find value in hearing about the experiences and strategies of others who have accumulated the awareness and wisdom of playing peacemaker on a regular basis. Lee Christie gathered up just such a horde on April 16 in the conference room of the Indiana Trial Lawyers Association to share their insights and tricks of the trade. This is not, of course, a philanthropic adventure, but rather a means to allow those who are registered with the Indiana Supreme Court as mediators in Indiana to fulfill their obligation to acquire such knowledge. It is certainly well-known to all reading these words that lawyers are expected to acquire a specified number of hours of continuing legal education on a periodic basis, but an additional obligation is placed on those who wish to maintain their status as a registered mediator to be certain that six of those hours every three years qualify as continuing mediation education. Thus, Lee sought to bring together the best and the brightest to enlighten and entertain those who strive to facilitate the resolution of disputes at the altar of compromise instead of the bench of judgment.

But is there really anything to learn? After all, there is but one question at each of the hundreds of mediation sessions that occur each week in Indiana: How do we get to “Yes,” or perhaps, “Well, okay,” or at least, “I guess so.” Sam Ardery, clearly one who would know, asked the participants not to dwell on the idea that a good result leaves everyone unhappy. Why should we set a goal of disappointment from the beginning when what is needed is the ability to accept the outcome? As Sam says, “[We] have a crystal ball, just not the right crystal ball.” The mediator can’t tell you what will happen, let alone what should, but s/he can help the parties recognize that being right can be really expensive. Those dollars left on the table, or used to satisfy a judgment, can bring ongoing feelings of loss when acceptance allows us to move on. Neil Bemenderfer observed that often when it’s declared to be about the principle, it’s really about the interest.

Mark Scott brought a different perspective given his sideline as a plaintiff’s attorney. It seems clear the vast majority of lawyer/mediators have come to that calling from the world of defense, perhaps driven there by the new world insurance defense has become. He shared a concern that you can’t assess the key elements of the process unless you assess the personalities involved. Has the insurance adjuster had a prior experience, favorable or otherwise, with the plaintiffs’ lawyer, or perhaps even the plaintiffs themselves? Have the lawyers for the parties butted heads in difficult cases before? Or perhaps an opposing lawyer has confronted a party in past litigation or business settings. Mark’s counsel is to find these nuances and work on ways to neutralize them as the day goes on. He seeks to find commonalties, grandkids, travel or sports loyalties, which help to humanize the combatants and ease away their conflicts and bring them together.

Lynn Gray, one of the more active women who have taken on the mediator role, has dealt with her own form of conflict in that setting. While we may wish it wasn’t so, there are gender biases that permeate society as well as other forms of implicit bias that can remain unrecognized. She has found it useful, when confronted with a mediation participant who chooses to lecture her about the case, to suggest it might be useful to compare their Google search with her law degree. It’s a fine line to walk because the mediator must be clear s/he does not represent any party and doesn’t provide legal advice, but just the same, the process requires a certain level of confidence and respect for the issues being addressed, as well as for the presenter.

To provide some balance to the day, Betsy Greene was invited to share her concerns as a plaintiffs’ counsel with the risks of mediation for her clients. While she makes a specific effort to prepare her clients for the mediation process and the risks and rewards it presents, she wanted those who wear the mediator’s hat to understand that she feels it’s important to protect her clients from abusive pressure from the mediator in that process. Without naming names, her message was that such tactics can create an impediment to getting to an acceptable result. Engage, certainly; inquire, of course; but, to be effective, these things must be done in a way that makes the plaintiffs, and in fact all parties, feel they are being heard, their concerns respected.

That brought back the thoughts of Sam Ardery from earlier in the day when he sought to debunk common myths of mediation. One that stood out was the idea that the mediator can control our thoughts and convince people they are wrong. The goal, as Sam sees it, is not to force a participant to say, “I guess you are right,” but rather to say, “I can see what you mean.” The difference is the opportunity to understand the dynamics of the case, the facts and/or the law, and decide how they are impacting the decisions that need to be made. Of course, the uniform mantra of all mediators is the fundamental fact that the participants can control their own destiny through the mediation process in ways they cannot in the courtroom. The goal here is to merge an appreciation of the big picture, as painted by both sides, into an acceptable outcome.

Of course, no seminar is complete without some wisdom from John Trimble, who picked up on a recent theme included in this space from his partners addressing the role of pessimism in the process. Those wild opening demands or skimpy offers can set a tone of failure unless they can be put aside. Of course, pessimism flows from every mediator’s biggest obstacle, the parties’ expectations. He suggests from the very beginning encouraging them to give the process a chance — “Don’t quit on me until you get the bait in the water and see what bites.” More alarming can be that take-it-or-leave-it moment when it seems the numbers have yet to overlap. John encourages testing those proclamations around the edges to see if they are real with, “So what if…?”

All in all, hearing about the experiences of others, the nuances of the process, serves a valuable purpose for every mediator, but can enlighten the mediated as well. See you next time.•

Mike Brown is senior partner at Kightlinger & Gray. Opinions expressed are those of the author.

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