How to Choose a Good Mediator
Most lawyers want someone from their background, but picking from ‘the other side’ can be smarter
By Scott Delius
Scott Delius is a mediator with Miles Mediation in Atlanta. He has more than 16 years of experience litigating both sides of personal injury and workers’ compensation cases, which leads to a very high mediation success rate. He is a solo practitioner, an Afghanistan veteran and a major in the Georgia Army National Guard.
How do litigating parties pick a mediator? Everyone has ideas about mediation strategy, but how does the selection of a mediator affect the outcome of the negotiations? The answer may surprise you.
Litigating parties often have a preconceived notion of who their mediator should be. The defense lawyer usually wants a mediator with a defense background, whereas the plaintiff’s attorney generally wants a mediator with experience representing plaintiffs. Opposing counsel sometimes refuse to use a particular mediator because of the kind of work that the mediator does in private practice. The implication, and it’s not really implied at all, is that the mediator is incapable of being neutral because of his or her practice area.
This has always seemed counterintuitive to me, even before I became a mediator. I suppose that there are indeed “neutrals” out there who in fact are not. Thankfully, I don’t know any of them. My favorite saying as a mediator is that I have but one allegiance, one party to whom I am faithful, and that is to “the settlement” itself. A mediator should not be concerned with impressing one side or another. That will come naturally if the case settles.
In any event, and for whatever reason, the conventional wisdom says that each side should strive to hire a mediator who does their kind of work. Supposedly having a fellow insurance defense lawyer as a mediator is going to help the defense negotiate a better deal and the assumption is that the mediator who represents plaintiffs will do the same for that side.
After successfully settling hundreds upon hundreds of cases as a mediator, I have a different perspective. I believe that lawyers should re-think the impulse to have “one of their own” act as mediator in every case. A closer look at the dynamics of a particular case may call for a completely different approach.
In my other life as a litigator, I often employ the “plaintiff’s expert” in my defense cases and vice versa in my plaintiff’s cases. I do that because I want a different perspective. I want my expert to identify both positive and negative issues, not just what they think I want to hear. I usually know what my strengths are, but I need my expert to also help me identify my weaknesses. An expert who only works for one “side” or the other may be lacking in that ability. That same philosophy may also be applied to mediators.
It doesn’t do a litigating party much good to have a mediator tell them what they want to hear. Praise isn’t always necessarily what’s best for our clients. Do you really want your mediator to tell you and your client that your case is rock solid, that you can’t lose and that you shouldn’t budge an inch? Maybe your client will appreciate it, but that probably isn’t going to help you settle your case.
Indeed, a good mediator asks the tough questions and points out the biggest risks to both parties. After all, that’s why you’ve come to the mediation table in the first place, to minimize your risk. How are you going to accomplish that if you don’t know what your risks are? I will submit that it’s a little too late once a jury lets you in on the secret.
If you’re the defense lawyer, there are some instances where you should strongly consider hiring a mediator who has the experience of litigating plaintiff’s cases. If the plaintiff has unreasonable expectations, there’s nothing more valuable than having a mediator who has the ability to look the plaintiff in the eye and tell him why his case is not worth what he thinks it is.
Mediators acquire that skill by having had the same heart-to-heart conversations with their own plaintiffs: clients. Credibility is everything to a plaintiff unversed in the law. It can be quite difficult to settle a case if the mediator is unable to make a “connection” with the plaintiff, especially where valuation is a sticking point.
Plaintiff’s attorneys should also consider hiring a mediator “from the other side.” If the plaintiff’s attorney believes the other side is undervaluing their case, an experienced insurance defense lawyer working as a mediator can be extremely effective when it comes to persuading an adjuster to offer more money. Insurance defense lawyers are skilled at advising adjusters on how to do their jobs. Plaintiff’s attorneys may have experience negotiating with adjusters, but that’s not what a good mediator does. An effective mediator speaks directly to the adjuster to help them do their job, which is to minimize the risk to their insureds.
It has happened to me countless times. I listen to each side’s presentation at mediation and I think of a question or see an issue that neither side has considered before. That’s because the parties often have tunnel vision. Litigators view and present the facts in the most favorite light for their client.
As someone who is new to the table, and who has represented both plaintiffs and insurance companies, I can see the entire case from all sides. I’m also able to have credible discussions with the plaintiff and the insurance adjuster because I’ve stood in their lawyers’ shoes many times before.
It is very important to choose the right mediator for the job. Litigating parties should take the time to step away from the case and objectively evaluate the obstacles to settlement.
Resist the instinct to insist on a mediator from “your side.” It may be that given the dynamics of your case, the opposite may in fact be needed, and hiring a mediator from “the other side” might actually be the key to getting your case settled.
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Communication drives mediation. Both the plaintiff and the defendant need to speak and be
heard. Resolution requires that both parties use positive language.
Research has demonstrated that positive language enhances the mediation process.
Conversely, negative language hinders mediation’s effectiveness. Negative language is
particularly harmful to mediation because negotiation and mediation are essentially a process
of joint decision making.
The participant using negative language affects the emotions and
decision making of the other parties. Negative language reduces the
other side’s willingness to cooperate and may even encourage the opposition to terminate
the mediation just to avoid the negative energy. Defense attorneys and insurance adjusters
who use positive language are more likely to bring a mediation to a successful conclusion,
particularly when dealing with a plaintiff who is motivated by anger or justice. The defense can
benefit from positive language even if the mediation does not reach a successful conclusion.
A wise adjuster — one who understands the worth of staying positive throughout the session—
once told me that even if you do not settle a case at mediation, you want to learn
the plaintiff’s bottom line: the lowest amount she would accept rather than risk trial. Knowledge
of the plaintiff’s bottom line strengthens the insurance company’s position. This is good
advice, as many cases settle after the conclusion of the mediation. This approach is not to be
confused with agreeing or acquiescing to the plaintiff’s position. While positive language
might not initially appear to be a fit with defense attorneys or adjusters, we have found that
when understood and used correctly, it becomes one of the most effective weapons in the
defense’s arsenal. Positive language is a way to advance a position or argue a point in an
effective manner. It really is possible to disagree without being disagreeable.
Some on the defense side avoid positive language for fear of sending the wrong message to the
They don’t want the plaintiff to conclude that the defense agrees with the plaintiff. Defense
attorneys and adjusters fear that a positive approach could lead plaintiffs to wrongly conclude
that the defense is prepared to pay more to settle the claim than the
defendant is actually prepared to pay. As one defense attorney told me, “Better to under-
promise and over-deliver.” The insurance industry often assumes the position of lowering
plaintiff’s monetary expectations, known as “bringing them back to earth.” This approach is not
surprising, for defense attorneys given that these attorneys have been trained as litigators. They
are most comfortable in the courtroom. Trials are adversarial. Attorneys
who want to win advance competing points of view. Winning is about defeating the opponent
and disclosing vulnerability, not about expressing empathy. If a plaintiff and his attorney won’t
agree to accept a reasonable sum to resolve a claim, trial is the insurance company’s
best option, and the wise insurance defense attorney tries each case in an efficient manner.
However, the time and cost factors of trying a case are averse to the interest of most insurance
companies. The insurance defense attorney, desiring the best result for her client, uses
mediation as the method of obtaining the best and most cost-effective resolution.
We again affirm that plaintiffs find process to be as important as outcome. Positive language
enhances process. While positive language alone will not likely resolve a case at mediation, our
research has found that defense attorneys and adjusters who use positive language
enjoy more success at mediation. Following are some examples of positive and negative
communications that we have noted at Miles Mediation.
One of the most effective communication techniques is expressing empathy. Plaintiffs motivated
by anger or justice have suffered a loss. They feel, often rightly so, that they do not deserve
what happened to them. They need to have their suffering acknowledged. They know that the
defendant can’t change what happened and that, in the end, their case will be resolved for a
sum of money. Regardless of who is legally responsible, these plaintiffs need the defendant to
understand their circumstances. I experienced this during the adoption of my son Joe. After
the baby arrived, things got difficult. Only when the baby was born did we learn of a potentially
dangerous condition in the medical history. This issue could have a significant impact on the
baby’s future. We were faced with a decision: Did we want this baby. My wife and I were angry,
frustrated, and confused. Why hadn’t this condition been identified earlier? What were the
chances the baby’s health would be affected? What were we supposed to do? Should we take
the baby home or begin the process all over again? My wife and I understood the situation for
what it was and that we were going to proceed with the adoption. Nevertheless, there was great
value for us in having our situation acknowledged and hearing that what was happening to us
wasn’t fair. Expressing empathy is not the same as accepting legal responsibility.
As was the case for us during the adoption process, the expression can be as simple as
someone confirming that what happened was unfair. Empathy is any expression that conveys
understanding of and identification with another’s situation. It can often be effectively expressed
by saying, “I’m sorry that you have had to go through this.” At Miles Mediation we have noted
the power of an adjuster’s expression of empathy. At best it completely changes the tone of
the mediation and sets the stage for resolution. At worst it causes the plaintiff to brush off the
attempt. However, we have never seen an expression of empathy hinder the negotiations.
Conversely, we have often witnessed the negative impact resulting from the failure to express
empathy at mediation.
I remember a mediation during which I joined the lone plaintiff in the caucus room
following the opening session. She turned to me and said, “They missed another opportunity to
say they were sorry.” The case didn’t settle.