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“I represent the settlement.”

An experienced mediator opened the session with this statement during a high-stakes mediation a few years ago. I was awestruck.

It is axiomatic that the mediator is neutral and represents neither side. But that doesn’t mean that a mediator should be dispassionate about the outcome of the session. On the contrary, a good mediator is invested in trying to settle the case—that is, after all, why both parties have invested in taking their case to mediation.

Representing the settlement means doggedly pushing both sides to put their best numbers on the table, continuing to engage in the process even when it seems hopeless, and talking them back from the edge when they want to leave the table. It means actively listening to better understand what makes each party tick, gain their trust, and learn their pressure points. It also means quickly identifying the key facts of the case and how they fit together.

Sometimes people act like mediation is easy—a lucrative gig for semi-retired lawyers. Like many things, this depends on how you approach it. Some mediators limit their role to dispassionately shuttling numbers back and forth until the case either settles or reaches impasse. This is easy, relatively speaking, and works in some cases. But effective mediation—getting cases to settle when they would not otherwise without more active intervention—is not so easy.

Effective mediation—representing the settlement—requires a high level of energy and focus, similar to effective deposition taking. Compare the lawyer who is always on his or her toes, listening to the witness’ answers to questions and constantly processing and readjusting strategy to the lawyer who simply reads questions to the witness from an outline and isn’t really paying attention to the witness’ answers because they are busy reading the next question on the outline. Both lawyers will get some answers germane to the case from the witness, but only one will be effective at cutting through evasive answers and getting answers to important questions they did not think to ask when they prepared their outline.

Effective mediation—representing the settlement—requires not only energy and focus, but also emotional investment. While I understand that there are cases where it does not make sense to settle, the parties often can’t make an educated decision about settlement unless they engage with an effective mediator. If a mediator reaches an impasse without effectively engaging the parties, they have not helped them make an informed decision about settlement—in short, they have not done their job. I always tell parties that it is not a bad thing if they don’t settle, but at least they will know they made an informed decision not to. I’m not upset when my cases don’t settle, but I am disappointed in the rare instances when I feel the parties didn’t try hard enough. 

If you have a case that might benefit from mediation—or if you’d just like to discuss how I approach certain types of matters—please don’t hesitate to reach out. You can reach me directly at 412.328.7836 or reply to this email.

Sincerely,

Andrew Horowitz