Let’s say you’re the mediator and the plaintiff’s attorney makes an initial demand of $20 million in response to which the defendant offers $2.5 million. You turn to the plaintiff and ask how he feels about settling his claims, and he walks out of the conference room, saying “Whatever all of you decide is ok with me.” What do you do?
This was the situation in the second episode of the new series Fairly Legal, which involved the mediation of a civil suit by an exonerated prisoner who was wrongfully imprisoned for more than 20 years. Most mediators in that situation would take the plaintiff at his word, especially since he has an attorney to represent his interests, try to talk the defendant up as high as they would go, and then congratulate the plaintiff on his settlement. On TV, however, the mediator feels obligated to provoke the guy into revealing his true feelings, and in the course of doing so, risks losing the entire settlement offer, almost winds up putting him back in jail, AND gets herself arrested in the process for destroying private property! But it all works out in the end of course, when the mediator presents the parties with a creative proposal she designed herself, that they all for some reason feel compelled to accept. (I doubt the plaintiff’s attorney was too happy with the deal, but the show didn’t have to worry about that.)
Despite this highly unrealistic scenario, the show does manage to raise some interesting questions about the extent to which a mediator should try to judge the fairness of a negotiated settlement, both in terms of the objective fairness of the deal given the strengths of each party’s position, and in terms of the mediator’s evaluation of the parties’ best interests. Should a mediator ever tell a party to hold out for more, or offer less, than that party seems willing to accept, because the mediator thinks the party can or should try to do better? Should a mediator ever probe behind the party’s expressed willingness to accept a proposed deal, to find out if that is what the party really wants? Should a mediator ever try to kill a deal that the mediator for some reason just thinks is wrong for one or both of the parties? A lot of mediators would probably answer an emphatic “no” to all of these questions, and be quick to condemn the fictional Kate Reed, no matter that she managed to satisfy everyone’s interests better than they could figure out for themselves.
I would agree that the answer to these questions should be no in most cases. It is risky for a mediator to second guess parties who appear willing to close a deal. There are almost always very good reasons for settlement, no matter what the terms, because the alternative of continued litigation is often disastrous for at least one, and perhaps both parties. And a mediator is usually not in as good a position as one might think to determine the fairness of a settlement. The mediator is not as familiar with the facts as the parties and counsel, and the parties don’t always tell the mediator everything about their case. Given those unknowns, the mediator has to rely on the parties themselves, and their attorneys, to evaluate the fairness of any deal for themselves, and to negotiate for themselves as well as they can. That doesn’t mean the mediator should not coach each party to help them negotiate their deal, or that the mediator should never offer an evaluation if requested. It just means the mediator should be hesitant to second guess the parties who are closest to the case and can in most cases be trusted to know for themselves what they want.
On the other hand, I don’t think it is a bad idea to do some probing to make sure that the parties are going to be comfortable with the deal they made, before they commit themselves to it. Mediation can be an exhausting and confusing process especially for people who are new to it. A mediation may be the first time a party has heard a conflicting interpretation of the merits of their position. It may be the first time a party has heard their own attorney express some reservations about their prospects. All that new information may have a disconcerting effect, and may make a party feel they have been steamrolled or tricked into a settlement. It’s good for the mediator to check to make sure that each party truly wants peace, understands the reasons for settlement, and believes that the deal represents a better option than the alternative of continued conflict. That might risk throwing a small monkey wrench into the process every so often, but it also makes it more likely that people are going to be satisfied with it in the end.