Point/Counterpoint: An Attorney and Mediator Talk Mediation
When’s the best time to mediate a dispute? What do mediators wish that attorneys did more of, or less of, during mediation? What would lawyers like to mediators to do more of?
We wanted to look at mediation from the viewpoint of both sides. So, we asked an experienced litigator and defense attorney, Mark Miller, of Barnes & Thornburg (Chicago), and an experienced mediator and plaintiff’s attorney, Michael Eshman, of Miles Mediation & Arbitration (Atlanta)— about their insights on both sides of the mediation process. (The two recently mediated a case together.) Their answers appear below.
Q: When is the best time to mediate a business dispute?
Mark Miller: Before attorneys have invested too much time and effort into the dispute. Before that juncture, the core of the dispute is a relatively pure disagreement about how business was done or should be done. Those are the kind of disputes that non-lawyers who run businesses deal with every day. Those stakeholders tend to be much more clear-eyed about their business needs and goals.
Frequently when lawyers get involved, they can make the dispute more complicated by giving their clients unhelpful feedback. Things like “they have no case,” or “we could beat them in court” or “there is no way a judge would ever rule that way.” And now you have lawyers who may find it necessary to posture with their clients, and who will do that posturing with the opponent’s lawyer, which now stirs in additional conflict and emotions. The less lawyering the better, until it is necessary.
Michael Eshman: The great lawyer answer is that “it depends.” Generally, earlier is better for the businesses involved. Earlier mediations can save a lot of money that would otherwise go towards legal expenses and minimize business disruption, and an earlier mediation can also help to get ahead of any building resentment within the dispute. Fires are easier to control and put out before they’ve spread too far.
That said, there is a balancing to be done, because mediation can be done too early. Generally, mediation in a business dispute is best when there is at least already a loosely agreed-upon framework of what the disagreement is and a sense of how the mediator can help to resolve the remaining disputes within that framework. Of course, a good mediator can help by taking time in advance of the mediation to work with the parties separately to help build that framework to make sure that the parties get the most out of an early mediation.
Q: What do you consider to be the biggest obstacles to resolution of a business dispute at mediation?
Mark Miller: The biggest obstacle is ignorance and ego — either one or even worse, a combination of the two. The worst kind of ignorance is simply not understanding the nuances and complexity of the dispute — and every dispute has nuances and complexities. There is no such thing as a slam dunk. And the worst kind of ego is the principal who thinks for some reason that he or she has to show they are tough. When you combine ignorance and ego in the same mediating party, it is either going to be a very long day or a very short day— but in any event an unproductive day.
Michael Eshman: Pride, reputation, and the need to “win.” I think people tend to view a legal dispute as a zero-sum game – “This person wronged me or my business, and I need to ‘win.’” When we view legal disputes in this way, we take greater pride in our legal and factual positions and any compromise of our own view becomes a hit to our pride or reputation. In reality, I think legal disputes are rarely a zero-sum game. If a business has a $1,000,000 legal dispute that they spend $1,000,000 to successfully defend and that defense comes with significant business disruption and reputational harm, has the business “won?” Maybe, but my experience is that most business and people aren’t too interested in Pyrrhic victories.
Q: What are the traits you look for in a mediator? What do your clients look for (if that’s different than what you look for)?
Mark Miller: The most important aspect or trait in a mediator for both lawyers and their clients is trust. The mediator must be the kind of person who all the parties will trust. And there are two characteristics that are critical to establishing that trust. First, the mediator must be able and willing to get into the weeds. The mediator must know the case well, so that what he or she is saying is backed by facts or principles underlying the case.
Second, the mediator should never lie. Never. Lawyers and clients are smart, and if the mediator is saying things that are untrue, the lawyers and clients will know it. Once the trust is established, the more effective mediators will be frank, critical, and direct with each party and their lawyer in caucus. If the mediator is doing nothing other than heaping praise on you and your client, chances are he or she is doing the same thing with the other parties, creating an environment where both parties feel they are right, and thus have no reason to compromise.
Q: What do you wish mediators did more or less of?
Mark Miller: Spend less time telling you why you have a good case and spend much more time reminding you about all the risks and weaknesses in your case, in the most credible and inoffensive way possible. Clients need to hear that.
Q: What do you wish attorneys at a mediation did more or less of?
Michael Eshman: If I had a magic wand as a mediator, I would probably wish for two things from attorneys at mediation — (1) that they posture with the mediator less and use that time to work with the mediator to explore the best possible negotiation strategies for their side. I get why this posturing happens (I have certainly done it as a lawyer, and I am very used to it as a mediator), but once the attorneys trust the mediator to work with them towards a solution that might work for their client, the process moves much faster and better for everyone; and (2) that attorneys look less to the mediator as a case evaluator and more as a facilitator who will help facilitate the right conversations that leads to meaningful negotiation. Even if the mediator has a wealth of experience in the area of practice at issue, the mediator has not been steeped in the evidence of your case to render a meaningful or accurate case evaluation for your specific case, generally speaking (of course, there are exceptions). The greatest value the mediator can add is to help cut through the posturing (the smoke and mirrors) to help facilitate meaningful conversation and negotiation between the parties.
Q: Do you have a preference to mediating virtually or in-person? Why?
Mark Miller: Definitely in person. Virtual communication only conveys about 5% of in-person communication. Moreover, in-person mediations provide a much better chance to build working, trusting relationships between the parties. Frequently, those relationships develop out of communication completely extraneous to actual discussions about the case and to the mediation quarters themselves. That relationship is no less important than the relationship between the mediator and each of the parties and their lawyer — which can also bloom more robustly in person than online.
Michael Eshman: I think virtual mediations are great tools when necessary, but I still prefer to mediate in person. I think the participants tend to be much more engaged and less distracted in person.
Q: As an attorney, what do you see as the advantages to mediation of a business dispute?
Mark Miller: I see it as a dichotomy between a laparoscopic, outpatient medical procedure, versus an open-chest, three-week hospital stay. At the end of the day, you will probably get equivalent results. If you can get that result without paying lawyers, e-discovery vendors, experts, and jury consultants — not to mention diverting the time and attention of businesspeople whose time is much better spent running their business than giving depositions and reviewing documents — do it. Litigation is long, expensive, and painful in so many ways.
And, assuming the litigation does not get dismissed on a motion, 99.9% of cases settle – even the ones where the parties say there is absolutely no way they would ever settle the case. At some point in the litigation process, there are going to be settlement discussions, like it or not. You might as well have that settlement discussion at the outset, before you invest all that time, energy, and money. In my mind, where you have a colorable, good faith commercial dispute, protracted litigation never produces winners. It only produces one party who loses less than the other.
Q: Finally, how can attorneys better prepare their clients for mediation, especially of a business dispute?
Michael Eshman: (1) Provide the right information, and (2) plan the negotiation strategy. Different clients will have different decision-makers who need different information, but generally, the client should have a sense of the specific legal risks, the legal budget, and the anticipated business disruption costs and other costs going into mediation. From there, the attorney should strategize with the client on how best to maximize their position at mediation and what meaningful concessions they may be prepared to make for a deal and what are the specific non-negotiables.
About Michael Eshman
Michael Eshman is a Spanish-speaking attorney with over a decade of experience litigating personal injury, civil rights, insurance coverage, real property, and business disputes in state and federal court. He has successfully litigated cases involving multiple parties, insurance coverage issues, jurisdictional issues, conflicts of law issues, and more.
About Mark Miller
Learn more about Mark Miller here.