The typical litigator views a mediator the way in which an NRA lobbyist would view a PETA protestor: with a mixture of disdain and bewilderment. Their worldviews arise from opposite poles and, as our current national political quagmire can attest, it is difficult to bridge that divide. Generally speaking, litigators view conflict as a necessary human condition to be celebrated and exacerbated. Consequently, they tend to adopt aggressive and abrasive stances, not overly bothered about ruffling feathers. Mediators may recognize disputes as being inherent in our lives, but lament that fact and work diligently to forestall issues as fast as possible. Necessarily in tune with the emotional needs of the parties, mediators tend to be more passive in their approach. This easy dichotomy is not accurate at the ends: there are certainly mild-mannered litigators that are tremendously effective. But the opposite is less often true: there are not a lot of mediators putting force into their messages. This is unfortunate. When endeavoring to solve problems, it may be necessary to crack some proverbial skulls.
The laissez-faire attitude of most mediators comes from their mistaken view that the mediation process is one without dire consequences for failure. Litigators operate in an arena where losing may mean that their client is liable to pay millions of dollars. They therefore toil to the ends of their sanity and health in order to prevent that catastrophe. They may employ tactics that are distasteful, but which they can justify as a means to prevent a horrible end for them and their client. Mediators are not driven by this zero-sum impetus. Mediation being both non-binding and voluntary, a failed mediation is not viewed with the same urgency. However, if a mediation fails, then the parties are cast back into the expensive and stressful world of litigation. Avoiding that outcome is every bit as critical as not losing at trial.
While mediators need to take some lessons from the litigator’s textbook, they need to carefully choose the time and manner in which to apply the admonitions. While a litigator can be a full-throttle lunatic all of the time and be disturbingly successful, that does not apply to a mediator. Mediators must regulate their behavior to adapt to changing moods and conditions. A mediator should project a blend of empathy and authority. This sets a peaceful, cooperative tone, while also creating an environment in which the parties have a mild fear of misbehaving. No party should feel that they are forced to agree to a resolution. However, as engaging in discussion in good faith is a bedrock of the process, the parties should understand that the mediator will not tolerate shenanigans.
Because mediation is often ordered by a court, the parties are not always engaging in the process with full enthusiasm. The mediator’s job is not only to get the parties to buy-in, but also to call out parties who are merely making a charade of it all. It is unconscionable for a mediator to sit back and let a party waste everyone’s time. A party must either come prepared for an open-minded discussion about settlement or else not come at all. The mediator holds a card that he should not be afraid to play: he must sign off on everyone’s participation. If a party does not attend mediation in good faith, the mediator should so report that failing to the court.
Assuming that the parties are talking productively, they will still encounter roadblocks to resolution. The mediator gets paid regardless of the outcome, so it would be easy to just call it quits at that juncture. Rather than simply giving up when the going gets tough, it is the mediator who needs to persevere. Pressure must be applied: the mediator must challenge the parties’ positions and assumptions. This should be done as directly and vehemently as possible, though coming short of being up in someone’s grill. By saving the ferocity for the opportune moment, the mediator has maximized the efficacy of his entreaty. Applied properly, the reticence of the parties will break free and they will move closer together.
It is not the mediator’s role to make decisions. It is the mediator’s role to use Jedi mind tricks to get people to make decisions that their emotions prevent them from seeing are in their best interest. Perhaps this is a bit paternalistic, but dispute resolution requires rationality and that is not likely to come from the parties or even from their attorneys. Mediators are learned warriors of a very particular stripe, but they are warriors nonetheless.