The Mediator’s “Tool Box”: Using the “Tool Box” to Overcome Obstacles to Settlement by Kenneth A. Reich
The Mediator’s “Tool Box”: Using the “Tool Box” to Overcome Obstacles to Settlement[1]
Article by Kenneth A. Reich, Esq., who concentrates his practice in environmental law, energy law, commercial leasing and civil litigation. www.kennethreichlaw.com. Ken is also a mediator, arbitrator and case evaluator with CMMA Dispute Resolution Services. https://www.cmmaadr.com/. He is an appointed member of the Massachusetts Bar Association’s Dispute Resolution Council.
On June 4, 2024, the Dispute Resolution and Civil Litigation sections of the Massachusetts Bar Association (MBA) sponsored a remote program titled “Overcoming Barriers to Settlement: Negotiation Skills for Civil Litigators and Mediators in Mediation.” The program included a panel of distinguished ADR specialists including moderator Mark Mason, retired Superior Court judge, and mediators David Hoffman and Brian Jerome, as well as experienced litigators Eric Finnemore and Michael Leard. This article synthesizes the author’s key takeaways, in bulleted fashion, from this 1.5 hour session and focuses on obstacles to a successful mediation and the mediator’s “toolbox” to help parties overcome obstacles.
Obstacles to Achieving a Successful Mediation
Where one party insists on a win-win scenario, e.g., revenge vs. solution, or “competitive bargaining”.
Confirmation bias, i.e., the tendency to process information by looking for, or interpreting, information that is consistent with one’s existing beliefs.
Conflicts between the lawyer and their client, or the lawyer and adjuster.
Mistrust by either party of the other, or mistrust of the mediator.
Reactive devaluation, e.g., “your demand is so high” or “your response is so low that we won’t respond”, leading to a belief that the other side is not negotiating in “good faith”.
Inadequate information because the dispute is not yet in litigation or is in the early stages of litigation where discovery has not yet commenced.
Parties not fully considering whether they have a best alternative to a negotiated agreement, e.g., high costs of litigation, time, stress, and loss of control.
The Mediator’s Toolbox To Overcome Obstacles
Use of metaphors to describe the dispute (a picture is worth a thousand words).
Have the parties fix the problem, not the people.
Where emotions run high, allow venting, but also help the parties get past their emotions.
Where there’s a lack of information about each party’s case, recommend that the parties consider limited discovery on key issues or share information and then come back to mediation.
Advise the parties to look through the windshield not the rearview mirror (i.e., look forward to a solution rather than dwelling on the past, whether past statements or offers, positions in litigation, etc.).
Take a break when a cooling-off period is needed.
Ask the parties to understand (though not agree with) the other parties’ position.
Try out hypothetical proposals with each party to see if there’s buy-in.
Range-bargain (“would you consider a settlement in the range of x-y?”).
Reframe the dispute in ways that offer each party a potential path to settlement.
Look to the parties to come up with creative ways to fairly divide or even expand the pie.
Where the parties have widely differing views on the value of their case/defense, bring in an outside retired judge or other knowledgeable neutral to provide a neutral case evaluation.
Where the value of property or a business is at issue and the parties have retained experts whose valuations are far apart, encourage the parties to retain a third expert to meet with the other two experts to attempt to agree on a fair price or price range.
Where an insurer is involved, and only where such potential claim/defense has merit, remind them of the Massachusetts laws regarding bad faith practices by an insurer as well as M.G.L. c. 93A’s prohibition on unfair settlement practices.
Make a mediator’s proposal, with the parties’ consent, that represents the mediator’s own “prediction” of how the dispute is likely to be resolved. This tool is typically used when they are close but still can’t reach agreement and will only be adopted if both parties separately agree.
Practice tenacity: “I will use my best efforts to continue the mediation progress for however long it takes until the parties reach a fair settlement.”
Once an agreement is reached, assist the parties in adding necessary contingencies to the settlement, e.g., the sale of a key asset must be at least for $x; identify tax and other liens that must be satisfied before closing; and develop a process and guidelines for managing an ongoing business that is transferred to one of the parties as a result of the agreement.
Conclusion
Some or many of the obstacles identified by the panelists and in this article arise routinely during the course of a mediation; which means that, in virtually every session, the mediator will need to utilize one or more tools in their toolbox. Moreover, the parties and their attorneys need to pay close attention, be introspective and ensure that they remain open-minded and are playing a collaborative and positive role in the negotiated settlement process.
[1] This article is adapted from a longer article by the author that appeared in the Massachusetts Bar Section Review’s January/February 2025 edition. See the link here:
https://www.massbar.org/publications/section-review/section-review-article/section-review-2025-january-february-2025/hot-tips-from-the-june-2024-mba-program-on-dispute-resolution-overcoming-barriers-to-settlement-negotiation-skills-for-civil-litigators-and-mediators-in-mediation
