For lawyers with the proper temperament and outlook on dispute resolution, mediation practice can be a tremendously fulfilling career enhancer, no matter what practice area you hail from. Stephen A. Hochman started out in transactional work and then shifted into mediation. Now a leading proponent of alternative dispute resolution, he recently sat in with Resolve Mediation Services, Inc.’s Simeon Baum for 10 Mistakes Even Good Mediators Make, the sixth part of Baum’s eight-part Lawline series on Commercial Mediation.
Hochman calls himself and his fellow mediators “agents of reality.” When parties arrive to mediation, they always know the strengths of their case. This comes from “advocacy bias” - their lawyers have honed and presented them with the winning points of the case. So, often, the parties come in with an inflated idea about their likelihood of success and how much money they will gain, which is the litigation, rather than the mediation, stance. On his list of ten mistakes mediators make, the second is failing to explain their role as an “agent of reality.” Hochman gives a quick “reality test” to mediation participants, bringing their positions closer by focusing them on the weaknesses in their positions.
If this makes mediation sound like a big couple’s therapy session, well, Hochman seems to see himself as would a good therapist, “with no stake in the outcome,” even as the parties jockey to convince him their position is right. For him, success is getting the parties to lower their expectations and their pursuit “of victory.” Achieving this is as much about exploring their feelings as it is about exploring their dollar position.
As for the other nine mistakes, they are:
Failing to get the right persons at the table.
Permitting settlement negotiations to begin prematurely.
Failing to orchestrate the negotiations:
a. prior to permitting the parties to vent; and
b. prior to risk analysis and reality testing.
c. by discouraging “out of the ballpark” offers or demands; and
d. by discouraging moves that send the wrong signal.
Failing to recognize that unrealistic expectations must be lowered gradually.
Being evaluative (a) too early or (b) in a joint session.
Failing to suggest ways to avoid reactive devaluation of sensible settlement proposals from the adversary.
Believing “bottom line” offers or demands.
Failing to “test the waters” before making a mediator’s proposal.
Being impatient, failing to be persistent or giving up prematurely.
Hochman uses these mistakes to review the mediation lifecycle, from initial meeting all the way to possible failure – the latter resulting in the “hail Mary pass” of mediation: the mediator’s proposal of a decision to the parties. It‘s evident that Hochman does not relish this option:
“[E]very other possible impasse breaking technique should be used…, including attempting to narrow the gap by using the conditional offer technique. For example, by asking the defendant in caucus, “If I could convince the plaintiff to reduce its demand to $X, would you be willing to increase your offer to $Y?” Conversely, in a caucus with plaintiff, you can ask “If I could convince the defendant to come up to $Y, would you be willing to come down to $X?” Even if the mediator knows from a confidential caucus communication that a party is willing to come down to $X or up to $Y, an offer that a party perceives that its adversary needs to be convinced to make may have a greater psychic value to the other party than if that offer was freely given by the adversary.” Hochman, Stephen A. The Mediator’s Proposal: Whether, When and How It Should be Used, The Newsletter of the International Institute for Conflict Prevention & Resolution, Vol. 30, No. 6 (June 2012).
A little devious, perhaps, but it avoids the mediator’s proposal, a device that should be used only after all other attempts to avoid impasse have failed. The implication is that if you haven’t avoided most or all of the other mistakes that mediators make, the mediator’s proposal isn’t going to work either. He’s a good therapist, this agent of reality.
Sigalle Barness is the Vice President of Content and a member of Lawline.com’s Executive Team.
Sigalle provides business strategy and leadership to the company and directly manages Lawline’s accreditation, programming and production operations.
Sigalle also analyzes market trends and applies insights to develop and execute written and video content including online educational programming, email marketing, social media campaigns, press releases, blog articles and large scale live events.
Sigalle graduated summa cum laude from Rutgers University and holds a B.A. in English. She received her J.D. in 2010 from Benjamin N. Cardozo School of Law in New York, NY. Sigalle is admitted to practice in both New York and New Jersey. She is also an active member of the Association for Continuing Legal Education (ACLEA), and is the former Chair of ACLEA’s Programming Special Interest Group (2013 – 2015) and National Provider Special Interest Group (2015 - 2017).
Before joining Lawline in March 2012, Sigalle litigated civil claims in areas such as landlord tenant, breach of contract and tax lien and mortgage foreclosures actions. She also handled transactional matters such as drafting residential and commercial leases, demand letters, and client conflict waivers. Sigalle is an avid lover of music, video games, blogging, asking questions and all things food. She is also fluent in Hebrew and enjoys writing fiction, traveling and scuba diving.