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D. Be Persistent

An important quality of a mediator is to be persistent. The most often heard criticism of mediators is that they gave up too soon. A good rule is to never terminate a mediation until the mediator is fired.

Lawyers are constantly testing mediators. They will suggest that there is little use of continuing the mediation because the parties are so far apart. This is not necessarily a signal for the mediator to terminate the process, but rather a show of force to get the other side’s attention. The mediator should not react but continue the process, explaining that termination is premature until the mediator finds out where each side is going.

E. Be Perceptive

A good peacemaker must be perceptive. She should be capable of identifying, understanding, and exercising good judgment concerning the relevant factual and legal issues.

The mediator has ready access to the strengths and weaknesses of each side through the caucuses. Therefore, she is in a unique position to identify issues, both factual and legal, which the parties may have overlooked, or perhaps failed to focus on properly. Many times such issues, once identified, understood, and evaluated, can lead to settlement. For this reason, the mediator should constantly question and not be hesitant to raise relevant issues. If a legal question arises that the mediator feels should be examined further, she might ask one of the attorneys to research it for her or ask permission to do the research herself.[92]

F. Be Sensitive

A peacemaker must be able to read, and be sensitive to, the feelings and motivations of the parties and their attorneys. Initially, the mediator should try to determine: (1) whether the party will be cooperative; (2) whether the attorney is having difficulty with her client; (3) whether the attorney is difficult to work with and whether she will obstruct the process or hold out until she gets what she wants; (4) whether the attorney is in conflict with the client—that is, the client may wish to settle but the attorney is holding out for more money; and (5) whether the client wishes to settle at any price because she no longer can stand the stress she is under.

Clients who are uncooperative generally say nothing and sit with their arms folded, not even looking at the mediator or their attorney. In such situations, the mediator will have to be patient and work to get them to be involved in the process and begin speaking their mind. They need to vent and should be encouraged to do so. This is the only way a mediator will learn how to approach them and begin getting compromise. It is also helpful if the mediator can get them to speak about themselves, their families, their grandchildren, sports, or any other topic of interest.

If the lawyer is having difficulty with her client, she will generally signal this in some way. Either she will tell the mediator directly, or she will rely on the mediator to ask questions that will permit her to speak about the problems she is having in developing the client’s position. For example, when the mediator asks for weaknesses in the case and the attorney turns to the client to answer, the mediator knows that the attorney probably was unable to speak of such matters previously because the client was not prepared to listen.[93]



Not infrequently, the attorney will be the problem. Some enter the process with skepticism or with an improper motive, such as to use the process to learn the opponent’s approach to the case. Others use the process with no intent of settling but instead want to see how far the mediator can move the other side and then ask for more on the eve of trial. Some attorneys like to have free discovery.[94] Whatever the situation, the mediator must determine early on how she will handle such an obstructionist. As noted above, whatever course she takes, she must be patient with the attorney and support her in front of the client.

It is important initially to try to determine if the plaintiff, in particular, wishes to get the matter settled at any cost. This could be motivated by several factors: (1) the party is under great stress and for peace of mind she wishes to end the matter; (2) a considerable period of time has elapsed and the client has become frustrated with long delays and unanswered telephone calls; (3) the plaintiff is being harassed by bill collectors and wishes to get rid of her debts; or (4) the plaintiff is paying increasing out-of-pocket expenses that she cannot afford. Whatever the reason, if the mediator can detect the need for resolving the matter, it will help her in working with the party and finding resolution. Unquestionably, these are matters a lawyer will try to hide from the mediator and the other side for fear that it will decrease or increase the value of the case, whichever side the party is on.

As the mediation progresses, the mediator must be sensitive to whether the attorney and party are being candid or whether they are using the mediator to further their own ends. In such situations, they are using the mediator to negotiate rather than mediate. The mediator must also be observant in multi-defendant cases where one or more defendants may hold up a settlement to get a result they wish. In other words, they are riding on the coattails of the other defendants.[95]


Date: 2015-01-02; view: 642


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