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THINK SMART: HIRE A WIMP
by Charles B. Parselle

A mediator is someone you hire to do a job you cannot do yourself.

Technically she/he is an independent contractor, therefore no FICA, health benefits, sick leave, or any other headaches. She is strictly temporary, and half her wages are paid by someone else!

But what is this job you cannot do yourself? You settle cases regularly, don’t you? In fact, you are probably an excellent negotiator. That is half of what we lawyers do for a living. We advocate, and we negotiate. What’s not to know?

The answer is that the mediator is hired to settle your case while simultaneously working for the other side. The mediator is impartial: you cannot be. You derive huge advantages from having an impartial third party in the midst of a negotiation. The cost of that “employee” is trivial compared with the advantages.

Why is your hired pro tem mediator so valuable and yet so cheap at the price? It is because the roles of trial advocate and settlement negotiator are, though not mutually exclusive when performed consecutively, difficult if not impossible to perform simultaneously.

The posture of the advocate is ATTACKING TO WIN THE WHOLE ENCHILADA. The risk the advocate accepts is that she will not win any part of the enchilada and, worse, may lose a whole lot in the way of costs, fees and unpaid bills. Statistically, one in twenty cases goes to trial, so evidently the potential reward is judged worth the risk 5% of the time.

On the other hand, the role of the negotiator is one of artful concessions, which is a friendly way of saying negotiating is a matter of RETREATING from an initial position. True, the purpose of those carefully orchestrated retreats is to WIN AS MUCH OF THE ENCHILADA AS FEASIBLE IN THE CIRCUMSTANCES, but there is a problem.

The problem is that a settlement negotiation is always conducted against a backdrop of continued or threatened litigation. The attitude of the attorney is, and must be: “Take this offer……or else you’ll be killed at trial.” The attorney must strenuously advocate the unbeatable strength of her case, but in a negotiation she must also retreat again and again from her initial stated demand.

The strain that this imposes on an attorney is one reason why settlement discussions are fitful, stressful, and often unfruitful until a late stage in the litigation. Therefore, many time negotiations are not even begun until both sides are over-committed relative to the value of the case. Since the primary duty of an attorney is one of strenuous advocacy, the attorney must adopt and maintain the necessary mind-set. It is easy to overlook weaknesses and exaggerate strengths. It is hard to pick up the phone and call the other side. Many times, demands and counter-offers bear no relationship to reality. And then there’s the client………

All this heartache and expense can be avoided by hiring a mediator, temporarily, cheaply, without commitment, and best of all without compromising your posture as a winning trial lawyer. The mediator is not a hired gun, but a hired wimp.  Even if he is not a true wimp, the mediator will do all the wimping that has to be done, for both sides, while you maintain your confident and controlled attitude. The mediator is the one who communicates the concessions. The mediator takes the strain. The mediator takes the heat off you, and out of the negotiation, by the simple technique of caucusing. And then there’s the client………(but that’s a topic for another day.)

If you know how to USE a mediator, you can settle cases in half a day of concentrated negotiation, instead of having matters drag with intermittent phone calls and unfruitful overtures for weeks and months. In the long run, and even the short run, it’s a cheap way of putting money in your client’s and your own pocket.

  Copyright 2006, Centres for Excellence in Dispute Resolution, All Rights Reserved