November 1 2015, By: Susan Hernandez, Esq.
Having been a mediator in the Court system and now in the private sector with NAM (National Arbitration and Mediation), I have come to regard private mediation in a new light and with a new understanding about what a mediator can and cannot do, and what mediation can accomplish. Of course, the old rules that were followed in the Court system still apply now as a mediator with NAM: mediators cannot take sides, cannot act as judges and decide conflicts and must always remain neutral. This is all well and good, but what then is the reason for a mediator? For that answer, a fresh look at an old system is needed.
First and foremost, it must be understood that the mediation process is really your process, not the mediator’s. You, the litigant’s advocate, control the process. The decisions made are yours. They are the decisions of your client(s) – the injured party in a negligence action, the defense, the businesses in a mediation, the insurance carriers sharing the burdens in a complex or serious litigation. The mediation forum is one in which the attorneys, clients, and and/or businesses all have control of the decisions that will be made. Because of this, you really don’t want the mediator to take sides or to give legal advice; he/she should be a true neutral.
Approached from this view, it is hardly surprising that the adversaries must come to the process having discussed the legal issues involved in the matter beforehand. Each side should have a realistic expectation of what the results could be when “coming to the table” with a mediator. It should also be clear that there should be some discussions with the adversary as to value, liability, insurance issues and, perhaps even the reasons why mediation is being sought before the parties sit in front of the mediator and present their respective sides of the case. Of course, the attorneys representing their clients should come prepared with answers to the actual and potential problems of their case, since the mediator is likely to ask some very pointed questions concerning the issues in the case.
Asking a mediator for legal advice is pointless. If asked, a mediator can give the parties his or her opinion, but usually there won’t be any unsolicited advice, at least not where all parties are present to hear that advice.
In a caucus with one side only, a mediator will often ask hard questions about your position. These may be questions that you did not discuss with your client or that you would rather not be asked. But think of these questions as the very point of mediating your case, of having you confront the weaknesses of your position or the strength of your opponent’s position. Some of the harder questions concern what you want as a settlement or what you are willing to offer to resolve the case. Don’t be surprised if the neutral mediator asks how you justify what you want or are offering by references to case law or past, sustained verdicts. Of course, this applies to both plaintiffs and defendants. It benefits you and your client since it makes you and your client confront reality and whether your expectations are based on reality. Such questions also help the mediator in assessing the likelihood of reaching the goal of mediation: the successful resolution of the case.
It almost goes without saying – but since it is being written here, it does need to be said -some attitudes simply do not help the mediation process. Too often, some approach the process as an attempt to intimidate the other side, or belittle the opponent’s position, or with boastful claims of what will happen to the opponent if the case will not settle and a trial will ensue. Rest assured that these attitudes are not helpful to the mediator or the process. Try to keep your focus on why mediation was chosen in the first place – as a means of settling a dispute without the necessity of further expenses and an uncertain trial result.
Susan Hernandez, Esq. is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel, and is available throughout the New York Metro area for arbitrations and mediation. She was voted one of the Top Ten Mediators in the 2015 New York Law Journal Reader Rankings Survey.
Click here to view Susan Hernandez’s resume.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.