I once had a case in mediation where my client was willing to make a major concession that went far beyond standing on its legal rights, which, in this particular instance, were quite clear. The mediator appreciated our approach, thanked us for being reasonable, and went to the other room.
However, after meeting with the other side, the mediator informed us that the other side did not think that this was a major concession, even though the mediator readily acknowledged that it was.
Apparently unable to move the other side off of an unreasonable position, the mediator started asking my client to make additional compromises. It was almost as if the mediator was saying, "Well, I can't talk any sense into them, so I'll try beating on you for a while, even though I think you are right." Needless to say, this went over in our room like a lead balloon.
The mediator's attitude seemed to be that the other party's subjective beliefs were entitled to at least equal weight with any objective evaluation of the law. Emotions and subjective beliefs are of course often at issue in mediations. But a mediator has to be able to deal with them, not just give in to them.
By giving equal -- if not controlling -- weight to the other party's subjective beliefs as to an objective view of the law, the mediator completely lost credibility with my side. The parties made no progress, probably ended up further apart, and the mediation was a failure.
This result was not surprising. A mediator needs to be an advocate: Not an advocate for either party, but an advocate for a reasonable settlement. If the mediator is willing to take positions that lack support, logic, or that appear -- without reason -- to favor one side over the other, the mediator loses credibility, just as would any other advocate.
However, after meeting with the other side, the mediator informed us that the other side did not think that this was a major concession, even though the mediator readily acknowledged that it was.
Apparently unable to move the other side off of an unreasonable position, the mediator started asking my client to make additional compromises. It was almost as if the mediator was saying, "Well, I can't talk any sense into them, so I'll try beating on you for a while, even though I think you are right." Needless to say, this went over in our room like a lead balloon.
The mediator's attitude seemed to be that the other party's subjective beliefs were entitled to at least equal weight with any objective evaluation of the law. Emotions and subjective beliefs are of course often at issue in mediations. But a mediator has to be able to deal with them, not just give in to them.
By giving equal -- if not controlling -- weight to the other party's subjective beliefs as to an objective view of the law, the mediator completely lost credibility with my side. The parties made no progress, probably ended up further apart, and the mediation was a failure.
This result was not surprising. A mediator needs to be an advocate: Not an advocate for either party, but an advocate for a reasonable settlement. If the mediator is willing to take positions that lack support, logic, or that appear -- without reason -- to favor one side over the other, the mediator loses credibility, just as would any other advocate.
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