Saturday, August 16, 2008

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.


Colm said...

Hi John,

I agree with you about the "persuasion" issue 100%. You might want to look at Victoria Pynchon's Settle It Now, blog for the following, which is, in my opinion, is not an atypical example of litigation lawyers view of the mediator!

Competitive Position-Based Negotiation Tactics from the California Lawyer


John Lassey said...

Thanks, Colm.

I read the Settle it Now post. Sounds like the California Lawyer article is generating some heat!


Stephen said...

Taking things with a grain of salt, having been involved in mediation for more than twenty years, I must say that if you convince a mediator, that tends to transfer into environmental effects that are persuasive.

Should it be the primary game? No. But a side focus, part of a coordinated strategy? Always.

The mistake is letting that element distract you from your primary focus, rather than using it to support what you are doing.