The Importance of Trust in the Mediator

In franchise disputes, lawyers and parties who search for mediators drill down on mediators' professional backgrounds, often paying the most attention to whether potential mediators have previously represented franchisors or franchisees. Despite the fact that lawyers generally don't choose their clients - clients choose lawyers - everyone, or most everyone, wants to know if a lawyer being considered as a mediator in a franchise dispute has been identified with franchisors or franchisees. It's no different if you are a personal injury lawyer - who has represented plaintiffs or defendants? With respect, and acknowledging my own past as frequently a lawyer for franchisors, this question misses the mark. A very successful mediator first taught me the fallacy in using past representation as a screening/elimination process when I was a Philadelphia lawyer more than 20 years ago. Tom Rutter, may he rest in peace, was one of the best plaintiffs' lawyers in town for 30 years and then became one of the best mediators in town for another 20. What Tom had was way more important than past affiliation with one side or the other. He had the trust of the parties and their lawyers. He showed that trustworthiness as an overriding characteristic is more useful as a predictor of success in a mediation than which side of the proverbial "V" a potential mediator happened to represent in a prior life._ Put another way, can you and your client put your trust in the mediator to do all within his power to help the parties move to resolution? More importantly, how does the mediator earn your client's and your trust?

Mediation literature supports the importance of trust in the mediator as a decisive factor in the success of mediation. In an article published in 2009, Jean Poitras, an associate professor of conflict management, asked the question "What Makes Parties Trust Mediators? Dr. Poitras knew that other academics had identified the importance of trust between mediators and parties as a key element of a successful mediation experience. What Poitras and his colleagues didn't know was why people trust mediators, or more to the point, what is it that mediators do, or don't do, that leads participants to place their trust in them.

What separates Poitras' work from other commentators on the role of trust in mediation is that he sought to identify empirically what parties value about mediators - not what mediators or lawyers believe makes a good mediator, but what the parties themselves identify as the factors that lead them to trust ( or not trust) a mediator. Following his team's review of questionnaires of parties who had completed a total of 105 mediations with 36 trained, full-time mediators, he identified from the parties' perspective 5 key subject areas of interaction with the mediator that parties emphasized in answering why they trusted (or didn't trust) their mediator:

1. degree of mastery over the process,

2. explanation of the process,

3. warmth and consideration,

4. chemistry with the parties, and

5. lack of bias toward any party.

Please note that Dr. Poitras' analysis was based on client interview - not lawyer interviews. So while a client may have some information from counsel about a mediator's history, the impressions that Dr. Poitras tracked were the clients' impressions of what was happening before their eyes. And for each client, those impressions were based on what he or she experienced during the entirety of the mediation process; that is, being present with all one's senses for the mediation's duration. For lawyers with prior mediations under their belts, they likely experience the time spent with a mediator much differently than their clients do. As I tell lawyers, they have many cases, usually the client only has one - this one. It's no different with mediations. Clients' perception of the fairness of the process is based on how they experience the mediator's treatment of them in what likely is the only mediation they will ever have - have they been heard, have they been treated with respect and understanding, does the mediator treat them as equals?

A word about Dr. Poitras' sample of participant responses from which he drew his conclusions. All of his mediations took place in Canada between employers and employees; all of them concerned employment disputes; 82% of them ended in settlements; and roughly half of his participants were associated with employers and the other half we associated with employees; almost 60% were college graduates (more 4 year universities than 2 year programs) and the rest were high school graduates; and roughly 70% were women, and the average age of all sampled participants was 40.

And another word about what degree of trust in the mediator Dr. Poitras' sample in fact had experienced- slightly more than half (about 56%) experienced what they considered "an above average level of trust" in the mediator, and the balance (about 44%) reported a "below average level of trust." Notwithstanding that division, approximately 82% of all cases ended in an agreed resolution.

It may be obvious that lawyers want their clients to have good experiences in mediation. What is surprising though is that a client's degree of satisfaction in mediation is not only measured by outcome. In fact, as Dr. Poitras' work points out, happiness with the process - was it fair for me? - is often ultimately more important to the client than the outcome. After all, any agreement is voluntary, so the mediator isn't usually responsible for the outcome, at least, in any direct way. But the mediator does have responsibility for the process. In meeting that responsibility, the mediator serves the parties. For the lawyers who represent clients in the mediations, after all is said and done, isn't it often the client's degree of satisfaction with the mediation process, irrespective of outcome, that determines how happy the client is with his or her lawyer?

For those of you who want to read more of Dr. Poitras' study, it is available here:

https://doi.org/10.l l 11/j.1571-9979.2009.00228.x. I intend to follow this article with additional ones that speak further to each of the subject areas that his paper identifies - degree of mastery over the process, explanation of the process, warmth and consideration, chemistry with the parties, and lack of bias toward any party-and what it is a trusted mediator can do to improve the mediation experience for the participants and with it improve the likelihood of a successful result.

Arthur Pressman biography and additional articles

How I Spent My First Year as a Mediator, Arbitrator and Occasional Expert Witness in Franchise Disputes

January 2018

Friends and colleagues,

A year ago I took the leap of faith to withdraw from my law firm partnership and begin a second act as a fully engaged mediator, arbitrator and expert witness in franchise disputes. Looking back over the first year, with your help, I’ve been able to help lawyers and their clients reach closure on vexing business problems. Here’s a sampling of what’s occupied my time this past year:

Mediation of franchisee vs. franchisee dispute in multi-million-dollar franchise system, complete with private equity owners, investment bankers, tier-1 franchise lawyers, and pre-mediation meetings in multiple cities. Result: settlement.

Engagement as expert witness for major East Coast law firm facing malpractice claims for litigation decisions involving New Jersey Franchise Practices Act claims in multiple jurisdictions.

Mediation of franchisor vs. franchisee claims for immediate termination based on intentional misconduct, with tier-1 franchise lawyers on both sides. Result: settlement. 

Mediation of franchisee vs. franchisor claims under New Jersey Franchise Practices Act. Result: not yet resolved but still working on it.

Mediation of lawyer malpractice claim by franchisee vs. former lawyer. Result: not yet resolved but still working on it.

Arbitration of limited partnership dispute among highly sophisticated investors.

Arbitration of multiple fee disputes between lawyers and clients pursuant to Massachusetts Bar Association dispute resolution rules.

Teaching at Boston University School of Law – alternate dispute resolution and negotiation (Fall 2017 and Spring 2018).

Publication of articles on mediator selection in The Franchise Lawyer and at www.mediate.com.

I’m looking forward to more opportunities in 2018 to serve lawyers, clients and the Bar. If I can help you, or if you have a case you wish to discuss, please connect with me at 508 878 8656 (cell), 617 345 1158 (office) or alp@arthurlpressman.com.

Best wishes for peaceful, healthy and personally meaningful New Year.  Remember, there’s often more value in resolution than in being right. ALP

ISO The Perfect Mediator; Other Characteristics Considered

Before social media, the personals column found at the back of New York Magazine was where readers sought potential mates or more, often beginning their ads, as they were called back then, with the three letter acronym “ISO,” meaning “in search of.” As readers of the ABA Forum on Franchising ListServ know, today’s posters often ask for help in finding potential mediators, albeit rarely with the ISO introduction. While geography sometimes prompts their questions (“Does anyone know a mediator in Dubuque?”), other times members identify the chief characteristics they seek in a mediator. For example, recently there’s been a spate of emails on the ListServ looking for a “strong” mediator.

The subject of this short piece is what this inquiry (“ISO Strong Mediator”) means. To answer this question, and pose others, I spoke with some long-time Forum members from both sides of the proverbial aisles—older and younger, dedicated and occasional litigators and lawyers recognized as franchisor or franchisee practitioners. I reviewed the same questions with each: what background or experience you look for in a mediator, what you dislike, whether it matters which side you are on, what clients look for in a mediator and what your preference among mediator styles is.

As I approached this article, I expected that how our members describe what qualities they want in a mediator would depend upon the case, the side the lawyer is on, the opponent, one’s own client, and mostly how the lawyer sees the mediator’s role. Contrary to my expectation, my sample of franchise lawyers has lead me to conclude that what a lawyer wants in a mediator is stamina, flexibility, dedication to the process, deference to the parties’ interests, and is frequently informed by past unsuccessful mediation experiences, rather than the needs of the next case. That is, the answer to the question of what a lawyer or client wants in a mediator, “strong” or otherwise, often reflects what they don’t want, based on lessons learned painfully.

So, what are the qualities or behaviors our colleagues identified that they did or didn’t like in a mediator?

WHAT WE LIKE:

  • Attentiveness
  • Persistence
  • Ability to influence
  • Respectfulness
  • Creativity 
  • Neutrality 
  • Honest talk at right time
  • Pre-mediation discussions with counsel

WHAT WE DISLIKE:

  • Poor listener
  • Too quick to throw in the towel
  • Message carrier
  • Self-centeredness
  • Linear thinking
  • Alignment with either side
  • Quick to evaluate
  • Unprepared, shows up and trusts instincts

Some of the best insights came from non-litigators who have found themselves in mediation and were surprised by the shortcomings of the experience.

 • “Mediation is not about the mediator … it’s about engaging through authentic and humble behavior.”

• “Show me, don’t tell me.”

• “Don’t give me your view without me asking for it.”

Each of these comments from a Forum member who asked not to be quoted for attribution describes her dissatisfaction with a mediator who did not listen and who was intent on pressing his own view of the dispute on the parties, whether they asked for it or not. For this lawyer, listening was the sine qua non for service as a mediator. Without it, you’ve literally got one hand clapping.

Similar observations from Bethany Appleby describe an encounter with a mediator who “was so intent on ‘growing the pie’ that she fell in love with her own proposed resolution because she hadn’t listened to what the parties wanted.” As a result of this mediator’s poor handling of the parties, the mediation failed. The quality that Bethany values in a mediator is flexibility and the ability to respond to what the parties want from the process, rather than a mediator who is intent on imposing on the parties the mediator’s “format.” As an example of how to learn what the parties want, Bethany points with approval to the practice of those mediators who schedule in depth ex parte pre-mediation calls with counsel (and sometimes clients) to learn what they can about the dispute before the mediation begins in person.

The mediator’s ability to be an active listener is a key requirement, says Bethany. As a lawyer representing a defendant, “you want the plaintiff to be heard at mediation.” Shutting down the plaintiff with a mediator who is quick to point out a claim’s shortcomings before earning the plaintiff’s trust does not help produce a successful resolution. If seeking a so-called strong mediator is code for “I want a mediator who will tell the other side that they will lose,” Bethany’s comment reinforces the shortsightedness of that view. Disputes don’t get resolved if one side stops listening, and a mediator’s early and heavy-handed evaluation, even if accurate, can doom the mediation. Bethany’s preference is for a mediator who can move from listening and trust building mode to evaluative, with a touch of tough love, if necessary.

Former Governing Committee Chair Ron Gardner looks for a mediator who has, or can build significant rapport with the other side and will demonstrate the risks involved in going forward to the client. “In these two traits,” Ron advises, he is

“essentially looking for the same thing—someone who will talk business sense to both sides, and to whom both sides will listen. I have found that for the most part, my clients will listen to what the mediator has to say. Therefore, if the mediator will speak openly, and honestly, about both the strengths and weaknesses of our case to my client, my client is more likely to make the right decision about whether or not to settle. Additionally, unless the mediator can build rapport with the other side, it is not likely that the other side is going to listen to what the mediator has to say either."

John Dienelt, another former Forum Chair, told me that he wants a mediator who is “patient and persistent [because] clients, and their advocates, are usually resistant to giving appropriate weight to the other side’s strong points.” An impatient mediator who is not willing to “keep at it” is, in John’s view, much less likely to achieve a successful settlement than a mediator who “never gives up” and makes it clear that (s)he has the commitment and stamina to work long and hard. Gardner makes the same point, albeit slightly differently:

More than once I have been disappointed in “reputable mediators” who throw up their hands long before I do, declaring that there is nothing more that they can do because the other side is not willing to do anything. In my view, it is the job of the mediator to get both sides to do something—even if that something does not ultimately lead to settlement. I do not need a mediator to be a water carrier—I need them to be an influencer.

In my own experience as a litigator going into mediation, I found that former judges were, to put it kindly, a mixed bag. Some are so skilled as mediators that they are booked for months in advance at retainer rates that would choke even the most aggressive litigant. Unfortunately, others are literally so quick to judge or so slow to offer much beyond “water carrying” that they do little to influence or assist a successful resolution. Dienelt also is “very wary of former judges, who often have a different skillset, appropriate for making decisions themselves, not facilitating the decisions of the parties, and seem unable to remember that they no longer are wearing a black robe.”

Neutrality and the appearance of neutrality are key factors in Dienelt’s mediator selection matrix. If presented with a potential mediator who has a high profile as either franchisor or franchisee lawyer, Dienelt thinks hard about whether he wants this mediator candidate, rather than someone who meets his other criteria, but does not have an established identity with one side. Conversely, Dienelt acknowledges that when representing one side, having as a mediator someone whose reputation as an advocate was made on the other side may prove to be very helpful in persuading that side of the strength of his side’s position.

 How clients look at mediators is less-nuanced—they want and expect a mediator to champion their views, or to show them a direction out of their dispute. As Dienelt recounts,

[N]o matter how many times, in how many different ways, I try to convince clients that mediators are supposed to be, and are, neutrals that have no decision-making power, I believe that clients instinctively view mediators as decision-makers and invariably look for someone who will favor their side, and not be truly neutral. No matter what clients say, I believe that what they truly want is a mediator who will browbeat the other side into agreeing essentially to their view of the case and their terms. Sometimes, I suppose, with strongwilled mediators (often former judges), this approach works. It doesn’t with me, and it never should.

Dienelt’s view supports the proposition that it is clients who often are ISO strong mediators notwithstanding their lawyers’ experiences that brow-beating is not usually the road to resolution.

Rudnick Award winner Michael Garner (who represents franchisees and dealers) prefers a mediator who is an activist, extremely well prepared, somewhat evaluative and creative. An “activist” mediator, Garner says, will build credibility with the parties, and apprise them, privately, of his or her view of the strengths and weaknesses of the merits and the procedural hurdles of getting to a favorable result in litigation or arbitration (this sounds very much like Bethany Appleby’s “some evaluation with a touch of tough love.”).

High on Garner’s list of mediator approaches are pre-mediation calls with the parties’ attorneys to clarify issues and begin shaping settlement discussions. These calls help the best mediators build momentum in the bargaining process by eliciting offers for settlement from each side at an early stage and then working to narrow the gap. These mediators seek to build momentum in the bargaining process by eliciting offers from each side at an early stage and then working to narrow the gap. Good mediators identify the points of dispute and further build momentum by fostering agreement on “easy” issues first; this gives both sides a stake in a mediated outcome and encourages agreement on more difficult issues.

Both Dienelt and Garner approve of a mediator who, when the hour is late and resolution is close but not yet reached, offers a “mediator’s proposal” in an effort to break through to settlement. Usually, a “mediator’s proposal” involves the mediator privately giving each side his or her view of a settlement and asking for a confidential “yes” or “no” from each side. If both sides say “yes,” the case is resolved; if either says no, the case is not resolved and a party who rejected the “mediator’s proposal” is left to consider whether the other side did so as well. An unaccepted mediator’s proposal does not, however, necessarily spell the end of the mediator’s efforts. Although some lawyers are not receptive to a mediator’s efforts to push toward settlement after the conclusion of a formal mediation (they may think it designed to “pad” a mediator’s bill), Garner values a mediator who takes the lead in post-session discussions, pushing—sometimes over a period of months—for a final resolution.

Although none of the Forum members I spoke with used the adjective “strong” to describe their mediator preferences, all emphasized “persistence,” “dedication” and “creativity” as among the qualities they value. Among mediators, the list of what they see as effective mediator attributes is long and does not include the word “strong,” unless referring to stamina.

At a mediation conference in Vienna that I attended in July, more than thirty mediators from around the world, including me, brainstormed and identified what for us are the essential attributes for high-quality mediator performance. The list was long—attentiveness, flexibility, empathy, curiosity, mindfulness, discipline, tenacity, stamina, respectfulness, intelligence, creativity, assertiveness, patience, calmness and confidence were at the top of everyone’s list, and no one’s list included “strong.”

In my humble opinion, it is the confluence of all these attributes that makes a mediator “strong” and leads to successful resolution. The likelihood of resolving a dispute is not improved by a mediator who strong-arms one side or the other, or presses his view upon the parties; in fact, the prospects of resolution are diminished when the mediator’s primary activity is pressing her own, or anyone else’s, agenda for settlement. Openness to all sides, with attentiveness, persistence, patience, and help with sometimes difficult conversations among the parties, is the more likely road to resolution, and what truly makes a mediator “strong."

International Bar Association Meetings In Sydney

I’m just returning from the International Bar Association meetings in Sydney (10/8 – 13).  I gave two presentations as part of the franchise committee and attended multiple mediation committee meetings.  Thousands of lawyers from all over the world in attendance.  Mediation as an approach to dispute resolution is alive, well and growing world-wide.  It offers parties the opportunity to pursue forward looking solutions to their disputes, rather than relive old grievances that only wound again.  It also calls for a special kind of lawyering skill and restraint to maximize its potential benefits.  I’m off this week to the American Bar Association Forum on Franchising annual meeting in Palm Desert, CA where discussion of the benefits of mediation in franchise disputes will be my focus.  Report to follow.  

Lessons Learned: International Style Mediation vs. US-Style Mediation

As you may know from previous blog entry, I attended the Vienna IAC/ IBA Mediation Competition for more than 35 international law schools in July.  In this article that was published on mediate.com I give some of my takeaway “lessons learned” from comparing “international-style” mediation and “US-style mediation.” 

Noted lawyer Gerry Spence is as accomplished a painter as he is a trial lawyer.   In both of these activities Spence creates canvases.  More importantly, he understands in both pursuits that he is the painter and not the painting.  Unlike Marshall McLuhan’s famous phrase, Spence as lawyer is the “the medium [and not] the message.”  What does this have to do with mediation, you may ask. 

In July I was an observer at the Vienna IBA/ VIAC Joint Mediation competition for approximately 35 international law schools (VIAC is the Vienna International Arbitral Centre).   When I observed mediations in Vienna as part of the international competition, I noted a primary difference between US-style mediation and what I will call “international-style” mediation – the role of the lawyers in each is very different.  In the Vienna mediations, the lawyers’ role was to provide legal advice to clients during the actual mediation; the lawyer was not the client’s mouthpiece or representative when it came to telling the mediator about the dispute or offering potential solutions to the dispute.  The clients were their own voices and didn’t rely on the lawyers to speak for them in joint session on business or negotiating issues.  To use Gerry Spence as a metaphor, in US mediations the lawyer is too often the painting and not the painter.  In joint sessions, US lawyers often present the clients’ positions, describe the dispute and its history and stake out positions, not unlike how they conduct themselves in court.  In the “international-style” mediations I observed in Vienna, the lawyers were not even the painters, much less the painting; they were their clients’ legal advisors.

But there’s a big difference between court proceedings and mediation that explains in part at least why the US lawyer speaks while the client listens – it’s because in court, the rules only allow a client to speak from the witness stand, and then only in response to questions.  In court, the lawyer’s license to practice is the lawyer’s license to speak, generally to the exclusion of the client except as witness.

There’s no comparable rule in mediation.  Indeed, as mediators know, other than confidentiality, one can argue that is are no, or few at most, rules in mediation; that’s its beauty and what creates its potential for magic.  It’s not any set of rules that requires US lawyers to do all the talking in joint sessions; it’s often habit, nothing more than a carry-over from an adversarial, rule-bound environment to an entirely different environment.  The question is whether US mediation may be better served by lawyers acting as legal advisors while empowering clients to take on a greater joint session role by addressing the mediator and the counter-party to the dispute.  Less is more is a difficult lesson for anyone to master, especially a US-trained lawyer with Perry Mason DNA, but I submit, it’s a lesson we all need to think about more.   By the way, I think mediators know that more client involvement is better than more lawyer involvement; that’s why in private caucus sessions, clients get much of the mediator’s attention.

In that regard, another big difference between the “international-style” and US mediations that I observed is the different role that joint sessions take in international mediation.  That different role may help explain why lawyers behave differently in international mediation than in US mediation.  More on that for my next article.

Mediation and Negotiation Competition in Vienna

July 2107 - I’m just back from the IBA-VIAC Mediation and Negotiation Competition in Vienna.  IBA is the International Bar Association, and VIAC is the Vienna International Arbitral Centre.  This year’s competition is the 3rd Annual.  Teams from 33 law schools from around the globe competed for a week in a mediation and negotiation exercise that culminated with the team from the National Law School of India (Bangalore) being crowned the winner after a head to head final round with the team from the University of Bonn Law School (Germany).  Approximately 30 mediators and mediation trainers also attended the competition, running a full schedule of mediation workshops for the students.  The competition was ably directed by Claudia Winkler (www.claudiawinkler.net), a negotiation and mediator trainer based in Vienna. 

At the competition I attended, along with about 40 other mediators, a workshop on “The Inner Game of Mediation: How to Perform under Pressure,” led by Aled Davies, founder and CEO of MediatorAcademy.com and Sabine Walsh, a mediator and trainer from the Mediators Institute of Ireland.  The best part of the workshop was a group exercise in which we all identified the qualities or attributes that help us perform to our best.  The top nominees were:

Attentiveness

Flexibility

Empathy

Curiosity

Mindfulness

Discipline

Tenacity

Stamina

Respectfulness

Intelligence

Creativity

Assertiveness

Patience

Adaptability

Neutrality

Calmness

Confidence

From a U. S. perspective, many clients and lawyers say they are most interested in “strong” mediator. What that often means is a mediator who will act as their ally in convincing the other side to accept their legal position.  Leaving aside the question of whether a “strong” mediator who presses one side or the other actually helps or hinders a resolution, what is noteworthy about the qualities identified above by 40 international mediators is that “Strong” isn’t on the list.  That’s likely because mediation as practiced elsewhere is more collaborative and more-client focused, and less lawyer-focused, than U. S. mediation is.  More on that next entry.  ALP