Mediators of all vintages must earn parties' trust
By AdvocateDaily.com Staff
Even with almost eight decades of experience between them in employment law, Fisher, principal of Barry Fisher Arbitration & Mediation, and Israel, founding partner with employment and labour law boutique PI Mediation, are careful not to rest on their laurels.
“Trust must be earned and maintained,” says Israel, who notes that losing either party’s confidence could result in negative consequences in both the short and long term.
“It will significantly decrease the likelihood of reaching a settlement, as well as negatively affect future business or referrals,” he says, adding that more senior neutrals shouldn’t assume their reputation always precedes them.
“You could be dealing with individuals who don’t know you from Adam,” Israel says. “Maybe one lawyer just said yes when the other suggested you.”
For that reason, Israel’s preparations start ahead of the session, with a meticulous reading of the briefs, before performing separate openings in each room during the mediation itself.
“It’s important to engage the parties, and demonstrate your knowledge of both the facts and the law,” Israel says. “I also use that time to gauge the audience to see if they have a sense of humour, if they’re out for revenge, or if they’re scared, all with a view to figuring out the best approach to take with that person.”
In addition to having faith that the mediator knows the subject matter, Fisher says parties who come before him must trust that he will maintain confidentiality and be honest in his assessments.
Still, he says some misconceive trust to mean that both sides will get the same treatment from him. But that’s not always possible for evaluative mediators like Fisher or Israel, where their experience allows them to pick holes in each side’s case during mediation.
“If one room is being unreasonable, I‘m going to be harder on them, not because I’m biased, but because I have an idea about who has a better chance of winning in court,” Fisher says. “Sometimes I have to straighten that out and explain that bias is different than having an opinion based on listening to the two sides.”
Trust is also a two-way street, says Fisher, adding it's important to make the distinction between the facts and a party's position.
“If the lawyer for the employer says no other bonuses were paid out, I’ll tend to believe it, unless I have a reason not to," he says.
“But on the other hand, if a client tells me that this is their only and final position, it’s not that I don’t trust or believe them — I know they may truly feel that — but I will just ignore it and push past,” Fisher adds.
“People often take an exaggerated position,” says Israel, who uses every opportunity he can to give parties a reality check, and explore the legal uncertainty inherent in the dispute.
“Usually I can talk them down a few levels to the point where everyone is singing my song, and we’re all co-operating to reach an achievable result,” he adds.
Losing trust is much easier than gaining it, says Fisher. And the simplest way to do it is by breaking a commitment to keep certain information confidential, he says.
“If you’ve undertaken to do something, and then you don’t do it, that’s going to be a problem,” Fisher says. “But at the same time, I work on the premise that no party would tell me something that they didn’t want me to do anything with, whether directly or indirectly.”
For example, in one case he worked, the lawyer for a plaintiff employee let him in on the fact that the litigation was causing his client severe emotional issues.
“The lawyer was trusting me not to go and tell the employer that his client was on the ropes and ready to capitulate, but to use that information in the right fashion as a tool,” Fisher says.
As the differences between the parties narrowed, Fisher raised the possibility that the plaintiff’s situation could prompt a separate disability claim tying the parties up in legal wrangling for years longer, and the matter quickly settled.
“The same information created the motivation to settle in both rooms,” he says.