By John R. Wilson
When creating the appropriate setting for a successful mediation, everything from the comfort of the room to developing a rapport with the parties falls within the realm of the mediator’s responsibility. One aspect that can easily be taken for granted is the formation of the appropriate mood and atmosphere in each party’s room, not only at the beginning of the mediation, but throughout the entire mediation. Many times the mediation starts off on a good note, then parties begin to get frustrated with offers from the other room that are perceived as insults. I recall one 91-year-old plaintiff in a nursing home malpractice case becoming frustrated with the insurer’s negotiation tactics, saying: “Their offers are as good as the care they gave me.”
It is often the case that one or more parties to a mediation approach it with a sense that the mediation is doomed to fail before it even begins. Many attorneys have told me in pre-mediation calls that they are not optimistic the case will settle and that I have my work cut out for me. These feelings are absolutely legitimate – something has occurred either in discovery, in communications with the other side or with the client that justifies the attorney’s sense of pessimism. To give the case the best opportunity to settle, it is incumbent on the mediator to set and keep a positive mood during the entirety of the mediation, to create an environment where hope and optimism keep the tentacles of cynicism and discouragement at bay.
Every time the mediator steps into a party’s room, all eyes turn to the mediator to assess his or her mood. How did things go in the other room? Is the mediator confident that the mediation is progressing satisfactorily? Is there a realistic chance of closing the gap? What the mediator says when communicating offers and moving the mediation along is important, but the body language and mood of the mediator are even more important. Regular smiles go a long way toward keeping a positive atmosphere, especially when entering the room. Keeping a sense of humor without making light of the seriousness of the case is an art that, when used with aplomb, can go a long way toward assisting the parties to dig in and do the hard work of sticking through tough negotiations hour after hour.
Even if late in the mediation it appears that the case will not settle that day, creating a promising setting for continued negotiations thereafter is vital to helping the parties keep the faith that there is a solution to be found.
The parties look to the mediator for leadership on every aspect of the negotiation to reach their end goal: a settlement they will accept. A mediator who keeps smiling, refuses to give up, and stays not only hopeful but resolute that a settlement can occur, provides the parties the best atmosphere in which to reach a settlement.
John R. Wilson is a partner at Rush, Hannula, Harkins & Kyler, L.L.P In addition to his active caseload, John serves as panel member for Pacific ADR Consulting LLC.