Tip # 5: “Be Real: Condolences, Apologies, &
Sincere
Concern.”
Much has been
written about the wisdom of making a personal connection
with the other side in mediation. The goal is to create a spirit of
understanding and collaboration, in the mutual task of finding a reasonable
resolution of the dispute. To this end, attorneys or parties may try
to express concern for the other party’s problems, in the form
of condolences, sympathy for an injury or problem, or even an apology.
How useful are such gestures? When do they work well, and when are
they counter-productive?
As in any
human communication, such comments during mediation draw
people together only if they are genuine. Warming up to the other side
because one is supposed to in mediation, or to gain advantage in a
monetary negotiation, will be correctly perceived as a hollow gesture.
In other words: be real.
Consider the
following unfortunate example. Plaintiff filed a complaint
alleging egregious misconduct (sexual harassment). In six months of
discovery, Plaintiff’s counsel attacked Defendant’s credibility
at every turn. In mediation, however, Plaintiff’s attorney began
with a well-rehearsed statement of gratitude for the defense agreeing
to the collaborative process, and expressed a heartfelt concern for
Defendant’s pain in the costly and contentious litigation process.
This attorney’s statement was not grounded in reality. The attorney
was not Defendant’s friend, was the cause of much of the misery
of litigation, and sought to gain financially by the outcome. By an
essentially false statement, he had established that he would not speak
the truth at mediation. The task of finding resolution became even
tougher (exactly the opposite of the intended effect).
In the joint
session of a contentious case, it is far better to acknowledge
the bitterness of the battle, and the dramatic variance of the stories
told by each side. From this position of reality, further comment on
the wisdom of compromise in the face of conflicting evidence or the
uncertainty of a jury verdict, will have the ring of truth.
There are
mediations in which an apology makes sense. When liability
is relatively clear and the loss is real, it may be the one thing a
Plaintiff needs to hear from a Defendant (or her representatives).
All communication is confidential in mediation (Evidence Code
§ 1119),
so there is no down side for the defense. Missing an opportunity to
acknowledge the obvious only diminishes credibility, making it tougher
for the Plaintiff to consider arguments for reasonable compromise on
the numbers.
Some of the
best personal comments in mediation come directly from
the clients, corporate representatives, or others less directly involved
in the litigation. The opposing lawyer is commonly perceived by the
client as aggressive and unreasonable. Genuine comments may also be
better heard when offered informally, not in the joint session. There
is an element of theatrics to presentations in joint session, even
if well done. In a recent case, a Defendant personally told Plaintiff
at a break in caucusing: “I hate this whole thing. I am really
sorry you were hurt. I hope the insurance company can work it out.” The
Plaintiff later told me: “I didn’t expect that. It was
nice to know he cared.”
If it does not
feel sincere or is inconsistent with the history of
the dispute, do not fake it. Be real, as you consider opportunities
for genuine contact with the other side.
Each month I
will explore one new tip to using mediation successfully.
Next month: “Use the Mediator.”