Thursday, July 2, 2009

The Mediator as Dutch Uncle

I am always uncomfortable when asked to play the role of Dutch uncle by an attorney for a party involved in one of my mediations. The request is usually (but not always) made by the attorney for the plaintiff and goes something like this: "My client just doesn’t understand that a jury will never give her the kind of money she is looking for! I need you to bring her down to earth." I become even less comfortable if it appears that the attorney has been too chicken to discuss the matter frankly with the client and simply wants me to get him or her off the hook.

A cardinal principle of mediation is that it allows the parties themselves to decide their case, rather than having the decision turned over to 12 strangers. Nobody should either be coerced or manipulated into settling a case — even for their own good (as perceived by others). Having said that, I will sometimes — reluctantly — agree to "help talk sense" to the client, but only when I conclude that: (a) the client truly does not understand the risks; (b) I have the active support of the client’s own attorney, who has come to the same conclusion; (c) I believe that the other side’s offer is both fair and will not be improved; and (d) I believe it would do no good for the parties to adjourn and, after reflection, try again later.
Even with all of these factors in place, I personally prefer the wise grandfather approach, using reality-testing questions, over the more abrasive Dutch uncle lecture. The process of mediation will be respected only if the parties are persuaded instead of pushed.

No comments: