Can a Mediator be Forceful? Should a Mediator be Forceful?

In the course of my career as an advocate, I participated in countless mediations where it seemed as though the parties were just not on the same page. It’s not that they had significant different versions of the facts or materially different interpretations of the law, it’s more as if the parties were just talking past each other. In those times, as an attorney, I wished that the mediator would pull each party aside and give them a stern talking to, trying to jolt them back onto the same page. Often times, the mediator would not do that, opting instead for gentle persuasion … so gentle, that the parties would not end up persuaded.

One time, in a contentious case with a particularly difficult plaintiff, I had experienced mediator out-right refuse to present the opposing plaintiff’s settlement demand to us (the defendants) because it was so outrageous. He told the plaintiff to throw that number away and come back with one significantly lower. Was that the right thing to do? Given that the defendants probably would have terminated the mediation on the spot, immediately after that hyperbolic number, yes, it was. And the case eventually got settled.

As a mediator, though, I question such forceful push back. What if the mediator’s perception is askew? What if there are facts or arguments that the parties — for whatever reason — have held back from the mediator?

But, recently, it became necessary to push back on a plaintiff and plaintiff’s counsel and it reinforced in me the notion that a good mediator must tell a party what the mediator honestly believes the party NEEDS to hear. Often times, mediators will tell the parties what the mediator believes they WANT to hear. Sometimes the “want” lines up with the “need”, but sometimes it doesn’t. And in those times, that’s where a mediator earns his paycheck.

When a settlement demand or offer is so untenable and so detached from a reasonable BATNA/WATNA analysis, it is the good mediator’s obligation to break through the walls erected by the party. Even though doing so may risk irritating the party (or counsel), bringing that party (and/or counsel) back to reality is a necessary step to push towards resolution. Recently, I irritated the plaintiff and his attorney by being forceful. I could sense the resentment once I told the plaintiff what I truly believed he needed to hear.

Fifteen minutes later, though, the case got resolved.

Mediations can be painful at times. They’re not designed to a Sunday afternoon walk in the park. But though that pain, if done right, resolution can be achieved to everyone’s satisfaction. And sometimes, it takes a forceful mediator.