As the bar mediates more cases than we try, it is important for us to understand mediation more deeply. What are the qualities of mediators and attorneys that result in good outcomes? The Honorable John V. Acosta of the U. S. District Court for Oregon is a favorite choice among the bar to serve as settlement judge. He was kind enough to sit down with me to talk about mediation.
Judge as Mediator
Judge Acosta knows that parties often view a judge as the “presumptive fount of knowledge; ‘Well if the judge says . . . .’” To encourage self-determination, Judge Acosta “takes every precaution to ensure that [my judicial office] doesn’t take over the process for the parties.” He takes time at the beginning, especially in plaintiff’s room, “to ensure the plaintiff knows that this is not my decision. It’s theirs. It’s not my case; it’s theirs. I am not here to tell them to do anything or to take or make any offers, or to tell them to settle the case. It’s all up to them.”
Give people time and space
“I think the process is extremely important to creating ownership of the result,” says Judge Acosta. If one of the parties thinks “they have been given an ultimatum or the number has been dictated to them,” then they are “not going to own the process. They are not going to feel good about it, and they are less likely to say ‘yes.’” Mediation that elevates self-determination over authoritative direction takes time. That’s one reason why Judge Acosta does not set a time limit for the settlement conference; he sets aside a whole day.
Some mediators believe in same-room mediation, but not Judge Acosta, “I am a firm believer in not convening the parties in the same room — at any point in the process. I have never found that it helps facilitate an open discussion and ultimately a settlement in the cases that I have conducted. Usually, it hinders the process.”
So what is it about same-room mediation that can be a problem? Judge Acosta harkened back to his experience as a lawyer. “When you get them in the same room, then the lawyers have to be advocates, and they have to put their best face on their client’s case. That usually means saying stuff in the presence of the opposing party that makes the opposing party angry. Then, that lawyer feels compelled to respond.”
What makes a good mediator?
Judge Acosta says the primary skill of a good mediator is listening. “Most people listen to respond. When you mediate you have to listen to understand. The best mediators that I encountered as a lawyer listened and understood my client’s viewpoint, perspective and position. Mediators really have to do that. If you come in with a preconceived notion of where the case should end up and you start driving the process, that’s wrong. You are not really paying attention to what their interests are, you are just trying to maneuver around positions. I don’t think that is the way it should be conducted. So I think that listening is first.”
A mediator cannot listen unless and until the parties speak openly. Judge Acosta is terrific at asking the right questions and projecting the empathy, which encourages the parties to talk. In the plaintiff’s room, I’ve heard him open with, “When you think of this case or your employment [in an employment law case], what do you think of?” It is a brilliant question on so many levels. It permits the plaintiff to unload anything she wants. Maybe she did not sleep at all last night. Maybe she’s blindingly angry at how she was treated. Maybe she’s worried about how she can take time from her new job to sit for a week at trial? The open-ended question identifies interests and concerns that can go well beyond the usual ones that attorneys assume are in play.
Another important skill, says Judge Acosta, is the ability to “honestly challenge each side’s firmly-held beliefs about their cases.” Here’s where settlement judges differ widely in approach. For Judge Acosta, “You have to do it in a non-judgmental way that does not put them on the defensive.” Judge Acosta likes to start with the strengths of a case to build trust. Later, he tries “to make each side think about their case in ways they hadn’t previously thought about it. They can’t own the process if I am telling them what their case is and isn’t. So I try to guide them to their own conclusions, which, in turn drives their decision-making.”
Judge Acosta’s approach is to emphasize his position as a neutral person coming to the case with fresh eyes, rather than as judge declaring what will be the likely outcome. “I put it in the context of what a jury is likely to pick up on and wonder about and ask questions about and respond or react to. I tell the parties, if I am having these questions, there is a pretty good chance that one or more of the jurors is going to be picking up on the same things.”
What can attorneys do to achieve good results in mediation?
Over the four years he has conducted settlement conferences, Judge Acosta has identified traits that distinguish attorneys.
Understand that the law is less important in mediation.
“Your role should be to represent your client’s best interest. To try to get the outcome your client wants, and that doesn’t always mean you have to be the zealous advocate that you would be in a trial or a deposition,” says Judge Acosta.
According to Judge Acosta, “In mediation, attorneys tend to place too much emphasis on the law. Law is not so important in a mediation or settlement conference as lawyers often think it is. Is it important in the case? Sure: motions for summary judgment, motions to dismiss, evidentiary motions, jury instructions, sure. But we are not doing any of that in a settlement conference. Attorneys often try to impress me with how great this legal issue is for a party, and my response is always, ‘Well, if you’ve got a great legal position, you ought to just go file your summary judgment motion or try the case. Why are you here?’ Well, they are here because they know there is always a risk to either side in any case moving forward to a jury. I want to get to the more pragmatic issue of “how can we resolve this?”
Good attorneys let their clients talk.
Judge Acosta continued, “The best lawyers let their clients talk for themselves. I like to talk directly to the parties. Doesn’t matter what room I am in, it absolutely doesn’t. If I am in the defendants’ room, I take the same approach. I talk with the representative. I can talk to the lawyer anytime, but I can’t talk to the representative except this time. It is their case, not the lawyer’s case. It is not the lawyer’s decision.”
“The best lawyers let their clients talk and don’t interrupt. When they do interject, it is usually very helpful context or affirmation of what I am saying or linking it to something that the two of them have talked about as a factor in that party’s decision making. That is very useful.”
Counsel your client on the realities of the case.
Judge Acosta advises attorneys to “be realistic about the case before you ever show up for the settlement conference. Candidly identify the weakness of the client’s case. Manage the clients expectations by honestly conveying to them jury verdicts or settlements in similar cases.”
“Quite often plaintiffs start very high in a range that they know the defendant is not going to pay. They are trying to create some room so that when they get to the real bargaining, they will end up where they would like to end up. And Defendants always start too low. They come in with a number that they know that the other side is not going to take, but they do it for the same reason.”
“Very effective lawyers,” said Judge Acosta, “have already had a heart-to-heart talk with their client about starting at a realistic range. It doesn’t matter if it is the defendant who comes in realistically or the plaintiff who comes in realistically. That really helps me because I can say. ‘Look, these folks are already starting at a range that is within the range of reason. You are not even on the map here. You need to get close because if you don’t, I am not going to be able to do much with the other side until you do.’”
Effective attorneys dovetail their counseling with the work of the settlement judge. According to Judge Acosta, “Some lawyers do this ahead of time. Other lawyers to do it in the settlement conference itself, [perhaps] because they are waiting for the judge talk to their client before they can say ‘see now, remember what we talked about before we came here today. You heard what the judge said. That’s a lot of what we talked about. Let’s look at our number now.’ The good lawyers I have seen in settlement conferences do that very effectively.”
Merrick Mediation Services