The Mediator as a Bridge

Thu, Mar 6th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By Dave Connor

Years ago, the court appointed a wise and productive mediator who had been a country lawyer, a prosecutor, and a judge to a case of mine. I was an attorney, and my client was a seasoned and successful old farmer, who had sold his crop to a slick buyer on a poor contract that I hadn’t reviewed. Let’s call him “Will.”

The litigation that was stumbling to trial had drained Will’s respect for the courts and steadily heightened his moral outrage at his position. The pretrial mediation had passed through several fruitless hours because of this and was on the verge of stalling out. The mediator asked to speak with the farmer directly, and I was delighted. The mediator and farmer chatted for a while about the past in their little part of the world, the characters they knew, and the deals they had seen.

Shortly, the mediator returned to the matter at hand and, after summing up where he thought the case could settle and why, he said, “Will, you know as well as I do that the old-timers always said that if you had to have a written contract with a man, you shouldn’t do business with him.”

Within an hour, the mediation settlement agreement was done and signed. Why did this work? Because for a moment, the mediator served as a “bridge” between the world the party knew, a world traditionally distrustful of slick outsiders, and the hyper-technical world of the courts. When Will could understand the case as his own breach of a “code” outside the law, he suddenly saw the reason to settle.

Each litigant comes to a case from his or her own world, which is most often far from the world of the “Law.” Lawyers are routinely mystified by their clients’ seemingly irrational refusal to settle cases that need to be settled, but this is very often because no one has truly connected the case to the world they live and work in, which crystalizes their understanding or motivates them to make a deal.

The Mediator as “Bridge”

The mediator who can make that connection and be that “bridge” between two different worlds, has a far better chance of settling the case than one who repeats the same unavailing explanations of the law or drones about the risks of trial. But how is this to be done?

Our mediator above had the advantage of years of experience in the world of the farmer. Mediators may from time to time have the same advantage, and if we do, we should certainly use it, striving to find analogies, histories, stories, anecdotes, sayings, truisms, et cetera that fit our purpose. Some focused thought given in advance might make the difference between an impasse and a settlement. But what if we have no such fund of knowledge or experience? Here are three ways to help build that bridge:

Play up the “Local” Angle

Regionalism is still alive and well in our country. And every party to a lawsuit, whether individual or corporate rep, comes from somewhere. One extremely successful mediator makes an appeal to where the parties are from an integral part of his approach to them. Although he excels in dealing with Northeasterners, he works wonders with any city dweller, and he seems to turn all large American cities into their own large region. In a raucous case he might simultaneously amuse one room by describing how loading dock disputes were settled in Philadelphia “back in the day” and soothe the other room by relating his “Philly grandpa’s” advice on dealing with traffic tickets.

Sound contrived? Maybe, but when it works, it works. Every mediator comes from somewhere, too. If we have this common ground with a party, we are wasting a resource not to use it.  Somewhere on that common ground there may well be a landmark we can use to get motion going in a slow or stymied mediation.

Lean into the Line of Work

Lines of work produce norms and rules that are imprinted on the people who work in those industries. For example, real estate “flipping” and investment banking in boom-and-bust cycles train their participants in distinct approaches to the concept of risk-taking. If we learn these concepts, we now have a way to conceptually “bridge” the risks of court and the risks the party or parties face every day, enabling a conversation with the party that is closer to apples to apples, oranges to oranges. As the rumors of the end of a boom grow in force and volume, and time is truly of the essence, the predictable delays that trials and appeals impose to resolution may be far more important to the parties’ risk/gain analysis than the legal and factual questions to be tried in their case. Striking up that conversation sounds more profitable than fly-specking their contract.

Focus on the Family

Many cases have an essential context in which all parties are immersed. Take a family-based business dispute, like trust litigation in a control trust or the bust-up of a family LLC through a derivative suit. Because the litigants’ family is at the heart of the case, any skilled mediator will come to understand over time the extra-legal nature of most such conflicts. What’s more, every mediator comes from a family and has some innate understanding and intuition to employ.

The opportunity is to leave the hyper-complicated realm of the law and create a bridge to the potentially more powerful force of family reconciliation. A mediator who finds or guesses the real family issue that underlies the surface feature of the legal action, is on the way to opening discussions which may lead to settling a case where the parties’ monetary positions provide little hope. Again, spending some time finding out what’s really grinding on folks and getting it out may be worth more than hours of talking about valuations, conflicts of interest, or just … money.  The settlement of more than one such case has been catalyzed by an apology of some sort.

Bridging the Gap to Resolution

Although mediators often enter the room with only dry facts and positions from legal papers, which themselves not infrequently serve to freeze the parties’ positions, we may instead choose as our reference point for discussion the parties’ worlds outside the case, whether personal, geographical, business, interest or occupation. “Bridging” to these worlds in a relevant and appropriate way is a powerful tool to move the parties past the kind of inflexible positions fostered by only legal analysis.

*Originally published in the Daily Business Review and reprinted with permission.

About Dave Connor

Dave Connor is a newly Certified Florida Circuit Civil Mediator. His experience includes 40 years of diverse trial practice that included both civil and criminal cases in state and federal courts at the trial and appellate levels of three states, with over 30 years in central Florida.