Don’t Pitch to the Mediator

Remember Milo O’Shea’s character in The Verdict? He played the partisan judge with the Irish brogue who urged Paul Newman to take the offer on the table by saying: "I meself would take it and run like a thief!"

Unfortunately, this is how many — both in and out of the legal profession — still think mediation works. See, e.g., Geoff Sharp’s recent post on mediator blah ... blah . . .. These folks pitch their arguments toward the mediator, rather than the other side. For some reason, they think that the opinion of someone who has only recently been exposed to a brief snapshot of the facts will carry a lot of weight with the opposition.

Such a ham-handed approach often makes the other side respond with its own attempts to sway the mediator, causing the session to become a point-counterpoint debate refereed by the person who knows the least about the case!

The prize that people need to keep their eyes on is making believers out of the opposition. Therefore, it is far more productive for the parties and their advocates to direct their arguments and efforts toward them, rather than to the mediator.