Seven More Sins of Mediators
By Marshall H. Tanick

“Be sure your sin will find you out.”

Bible, Numbers 32:23

I habitually give a stump speech at Continuing Legal Education (CLE) programs and occasionally at other forums regarding Alternative Dispute Resolution (ADR) entitled the “Seven Sins of Mediators.” The address draws upon the famous Seven Deadly Sins of John Milton’s 17th Century Paradise Lost of Lust, Greed, Pride, Envy, Sloth, Wrath, and Gluttony.

The original address identified seven traits of some mediators through the eyes of a seasoned litigator and neutral that can impede the use of mediation as dispute-resolution device. Those deficiencies included Unpreparedness, Assumption, Routine, Possibility, Uncreativity, Cessation, and Billing.

Despite its negative overtones, the presentation actually was quite positive in orientation. It offered suggestions on ways to curb these tendencies in order to make mediation the type of efficient, economical, and, most importantly, effective vehiCLE for ADA that it purports to be.

But sin is not static. Like the Beelzebub, it crops up in many shapes and manners. It has particularly fertile ground in the mediation environment because of the growing frequency with which mediation is resorted to as a means of dispute resolution.

Here’s a look at Seven More Sins of Mediators, coupled with suggested ways to avoid these wicked ways.

Permitting unrealistic positions: A substantial portion of the first part of many mediation sessions is wasted by parties proffering unrealistic positions. In the typical mediation in which one party is seeking money from another, the claimant usually begins with a spectacularly high demand, and the other party counters with an extraordinarily miserly offer.

It takes a while for the parties to approach the range of realism. Meanwhile, both sides feel they are conceding too much by moving too far from their original positions. This process of unrealism taints many mediation proceedings, makes them more arduous and longer than they need be, and often leads to an unsuccessful resolution.

Mediators are partially to blame for allowing this to occur. The best way to curb unrealistic positions is to prevent them from cropping up in the mediation in the first place. This can be accomplished by requiring the participants to exchange settlement proposals sufficiently in advance of the mediation and to apprise the mediator of those positions, usually in a pre-mediation statement. The mediator should then talk to counsel for the parties before the mediation if either or each is propounding an utterly unrealistic position. The parties will have to get into a realistic range at some time during the process, and it ought to occur as early as possible, even before the formal proceeding commences. Taking a more pro-active pre-mediation stance can be a major contributing factor by a mediator to enhancing the process and the ultimate likelihood for success in dispute resolution.

The carrier pigeon: In addition to their neutrality, mediators usually are selected for their experience in a particular subject matter. The parties and their counsel stand to benefit from drawing upon that expertise. Yet many mediators shy away from offering any views on the merits of the case, or even trying to steer the parties towards a reasonable resolution.

Rather, they prefer to act as carrier pigeons, relaying messages between the adversaries without contributing much to the substantive process. This carrier pigeon attitude is for the birds.

Good lawyers, especially those that are confident of themselves but recognize their human fallibilities, should welcome mediators offering their views on a case. It often is the best way to break a log jam. Mediators, naturally, must be careful that they do not lose sight of their objectivity or the appearance of neutrality. Since both sides usually have gaping weaknesses in their case, it behooves a mediator to point them out to the parties, especially because the parties often are not able, or willing, to see the deficiencies themselves and their lawyers may be incapable, unwilling, or afraid to call the drawbacks to the attention of their clients.

The mediator is best situated to point out these drawbacks and deficiencies, especially if they can be noted even-handedly, fairly, and while preserving neutrality.

I don’t care: The carrier pigeon approach to mediation often is linked to an attitude reflected in the statement “I don’t care,” as in “I don’t care whether you settle this case or not.”

This is precisely the wrong attitude to convey to the parties, who usually are wary of the process anyway. If the mediator doesn’t “care” whether they resolve the dispute, they will have less inclination to do so themselves. The “I don’t care” attitude is akin to a judge telling litigants that the Court is not really interested in whether justice is served or not.

The best mediators, especially those who have a high ratio of success, are the ones who work the hardest at the process. They should begin by telling the parties that they, too, are invested in the process and have a stake in seeing that it works successfully. This demeanor can give the participants the impetus to work in a more collegial fashion aimed at the goal of dispute resolution.

Merely shrugging one’s shoulders and exclaiming indifference will invariably rub off on the parties. They will feel that, if the mediator doesn’t “care” if a dispute is resolved, why should they?

To be sure, a mediator ought not convey a personal preference for a particular outcome. But neither should the mediator convey an attitude that it doesn’t really matter if a dispute is settled during mediation. If that’s so, why bother to mediate in the first place.

This laissez faire attitude is unfair to the participants and should be avoided.

Have it your way: A related characteristic to the other syndromes is the diffidence expressed by mediators to how the process should proceed. Some mediators inappropriately give the parties virtually free reign in how the proceedings should be conducted, rather than helping to fashion the format.

While the parties need some latitude in the proceeding, they should not be given so much leeway that they construct the session themselves. Yet some mediators act like architects who approach a prospective homeowner by saying “what kind of house do you want” and then tell them to build it themselves.

A good mediator, like a good architect, should obviously allow the parties to offer input into the structure of the proceeding. But they should not leave it to the parties themselves to draft the blueprints. Rather, they should tell the parties how they think the proceeding ought to be conducted and then help implement and execute the dispute resolution process.

Home court advantage: Mediators should not be like delivery persons bringing their wares to the doorstep of the parties. Although there might be some convenience and economy in having a mediation at the office of the one of the attorneys representing one of the parties, that can be felt to confer a home-court advantage that can lead to bruised feelings on the part of the visitors. Such feelings can thwart the process, or delay success pending an attitude adjustment.

It is preferable for mediators to have the session at their site. This places the parties on a more even-playing field rather than allowing one party to have all the comforts of home while the other party may feel like an unwelcome visitor.

Some mediators may not have the available facilities to host a mediation. If not, they can pick some other site which has sufficient roominess and other accoutrements to conduct a business-like session. It may not even be that expensive, especially if the parties chip in the cost of the facility. Conducting a mediation at a site where neither party is overly comfortable is more conducive to a productive session and more likely to lead to a quicker and more successful outcome.

Marrying counsel and client: Some mediators make the mistake of feeling that they have to spend all of their time, except for brief respites to keep sanity, in session with each of the sides, accompanied by all of the participants on that particular side. They often would be better off devoting some time to huddling, individually or collectively, with counsel alone.

Mediators and the attorneys often can be more candid when talking outside the presence of the parties. Less posturing and more productivity can occur by adding some discussions that take place without the parties.

Even ex parte communications, prohibited in litigation, can be prudent in mediation proceedings. Mediators can often lean on counsel, especially those with unreasonable clients, and the lawyers can often be more swayed to part from unreasonable positions outside of the presence of their ever-watchful clients.

Not soliciting comments: Mediation can be a growth experience for all the participants, not just the clients and their counsel. Mediators can learn, too.

The best way to learn that mediators can learn about their performance and improve it is to ask the parties for an evaluation. Yet, nary a mediator has ever engaged in any post-mediation request for evaluation, in my experience.

That’s both a sin and a pity. It would be wise for mediators to prepare and circulate to the parties and the lawyers a simple questionnaire after a mediation is over in which the participants can express their views concerning the mediation. A simple questionnaire can be sent to them after the session is completed asking questions along the following lines:

1. Did you consider the mediation to be worthwhile?

2. Were the facilities appropriate?

3. Was the mediator fair and impartial?

4. What were the most favorable aspects of the mediation?

5. What were the most unfavorable aspects of the mediation?

6. Was the mediator’s fee reasonable?

Along with these questions, and perhaps a few others, the parties can be asked to give an overall rating to the mediation and offer explanations for their answers to these questions. Reviewing these responses help mediators adjust their behavior and improve their performance.

These seven more sins are hardly apocalyptic. If recognized and properly addressed, they can be treated and cured.

Mediators play an increasingly important role in the law and in resolving disputes within the legal system. Most are adequate, some are good, and a few are excellent. But those who fall short and occasionally lapse into any of these sins need not despair, Salvation beckons.

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MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A. He is certified as a Neutral by the Minnesota Supreme Court and, in addition to participating in ADR proceedings, serves as an arbitrator and mediator.