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Include a “Caesar Whisperer” at Your Next Mediation

October 23, 2014

If there is one quality that is required for repetitive success in mediation, it is objectivity.  Those who can maintain it will succeed at mediation.  Those who cannot are usually doomed to failure.

Derived from the “trial by combat” historical roots of the English legal system, our American system for obtaining justice is a poor breeding ground for the quality of objectivity in our lawyer-litigators.  After all, confidence in ultimate success has always been the ultimate hallmark of combat.   Likewise, American litigators must believe in themselves and their cause to even be trial lawyers.

And when litigators repeatedly succeed in trial, it then becomes increasingly difficult for them to believe they will not always prevail.

Thus begins the foreseeable road to their inevitable loss of  objectivity.

Mediation’s problem, however, is that most litigators simply do not recognize their own lack of objectivity.

One well-known phrase that is often used to describe a lawyer’s total lack of objectivity is that he/she is simply “too much in love” with his/her own position.  And this uncompromising advocacy thus blinds them to the merits of their opposition’s position.  (After all, everyone knows love is blind.)

However, successful mediation demands objectivity on the part of parties, but most importantly, their trial counsel.

There is a solution.  And it is really quite simple.

It is said that Julius Caesar, when entering Rome to his cheering, adoring crowds praising him after each of his many triumphs, always kept a slave by his side at all times to continually whisper in his ear, “You are not a god”.  One of the greatest leaders in history obviously knew he needed to maintain this crucial quality of objectivity to be able to continue to make similar decisions  to those that made him so successful and thus, so revered.

It thus is important for litigators to consider a similar method of maintaining objectivity in mediation. It is critical they be able to objectively evaluate the positions of the opposition so as to make prudent recommendations and permit the compromises so necessary to achieve mutual voluntary resolution.

The solution:  Always bring at least one trusted participant NOT  totally vested in your particular position to specifically assist you and your client in objectively evaluating your mediation decisions.  Another pair of eyes and ears.  Someone who can and will objectively listen, with you, to all of the information available at mediation and offer unbiased suggestions to supplement your opinions.

And, someone whose “whisper” is one to whom you will actually listen!

Such a person need not necessarily even be an attorney.  But, appellate specialists can serve well.  Or, your ‘whisperer” could be a paid neutral consultant.  See, A Mediator Retained Only as a Consultant, July 11, 2012 .   But, regardless, such a person must be a true neutral to be of real value.  (Note:  Despite the best efforts of any “chosen” mediator as the usual neutral voice of objectivity, the usefulness of such an additional voice and ear, in each caucus, is invaluable.)

Parties, of course, are always biased to their own position.  They become even more biased once involved in the litigation process.

And, the American advocacy system of law can easily engender bias into those counsel employed by those parties.  Particularly if they are repeatedly employed by the same parties.

And, simple continued advocacy of one side of an issue, Plaintiff or Defense, undoubtedly leads to more bias, likely more unconscious than conscious.

But, just because bias is understandable, does not make bias right.  And, it certainly is not reasonable.

In fact, isn’t that exactly WHY parties hire counsel?  To COUNSEL them.  And how can you objectively counsel anyone when you are not yourself objective?

Our present mediation system in Florida now requires the “certification” that parties come to mediation with sufficient authority to resolve their dispute. See, A Major Change in the Florida Rules of Procedure Regarding Mediation Procedure, November 22, 2011.   Perhaps it is time to consider a similar required “certification” that someone in those parties also attends with sufficient objectivity to be able to resolve, as well?

Better trial attorneys know to avoid their lack of objectivity.  And, usually take specific steps to avoid it.

Most firms know the value of always including a second lawyer for trials and hearings.  In addition to the obvious training and experience value to the “second”, the lead lawyer is provided with ready access to a more objective view of the proceedings, as they occur and for an after-review.

Another common objectivity tactic is to pick a point in the immediate pre-trial phase (or certainly the trial phase) when the lead trial counsel no longer participates in any negotiation, but rather assigns it to a less-involved associate.  Negotiation requires objectivity; trial requires avoiding objectivity in the name of advocacy.  The two roles are quite incompatible and thus require division of responsibility for maximum efficiency as trial becomes more imminent.

And most experienced trial lawyers, already know to always engage their appellate counsel either early in pre-trial or certainly immediately post-trial and prior to the foreseeable steps that always come following any verdict. Such neutral legal advisors are useful in both avoiding error and recognizing error in order to advise, objectively, the trial lawyer “in the trenches”.

And our Courts, also insist on mediation objectivity.

One of the principal reasons appellate courts require appellate counsel to attend appellate mediations is the recognition that the trial attorneys who have already tried the underlying cause are so obviously vested in a one-sided view of their appellate chances that they (and more importantly, their clients) need the objectivity of another more objective counselor.  See, The Importance of Early Appellate Counsel Actively Participating in Appellate Mediations, June 8, 2012..

Mediations come at many times in the life of a dispute.  And, thus, the better lawyers already  heed this simple idea:  stay objective as long as possible; but, test your continued objectivity by using others to remind you of your potential lack of objectivity.

At your next mediation, simply make sure you take along your own “Caesar Whisperer”.  Your clients (and your Mediator) deserve it.

Dan, from Bronson, Florida

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