This month let’s get back to basics. Everyone involved in litigation needs a primer on mediation from time to time. Whether you are new to this process or a seasoned professional, it is a good idea to remind ourselves why we do this. It is important that we do not allow our experience to fool us into thinking we need no instruction. To do so risks complacency and lack of focus. So, I encourage everyone to read on to the end.
Mediation, from the mediator’s perspective, is a non-adversarial process that emphasizes voluntary participation, neutrality, and confidentiality. It is distinct from adjudicatory processes like litigation or arbitration, as the mediator does not impose a binding decision on the parties. Instead, a mediator facilitates negotiations, helping parties explore underlying interests and develop creative solutions that may not be available through traditional litigation. Mediation allows for compromise and creativity, enabling parties to achieve resolutions that are often more satisfactory than those fashioned by a judge or a jury.
The Counterproductive Nature of Hardline Negotiations
Mediation is different from the perspective of the parties and their attorneys. From that perspective, mediation is anything but a neutral process. It is also often not voluntary because it is mandated by most courts before a case is allowed to proceed to trial. Every once in a while, therefore, I am not surprised to see a party at mediation who is, at best, reluctant, or, at worst, refusing to participate in a reasonable attempt to resolve the case that brought them there.
In those situations, I have seen participants who start with a demand and refuse to move off that number. It is the most extreme position and is highly unlikely to resolve the case. While this is a rare situation, it serves as an example of why hardlines are not recommended.
Taking a hardline stance during mediation, even less stringent than the example above, is still antithetical to the process’s collaborative nature. Hardline tactics often focus on rigid positions rather than underlying interests, which can create barriers to effective communication and compromise. Mediation, by contrast, seeks to move beyond historical grievances and positional bargaining, emphasizing the parties’ feelings, motivations, and needs to foster a forward-looking resolution. For instance, mediators may use techniques such as venting exercises or hypotheticals to help parties explore their emotions and consider alternative perspectives. A hardline approach, which resists such flexibility, can stall negotiations and prevent the parties from reaching a mutually acceptable resolution.
Instead, attorneys should prepare their clients to set aside everything they think they know about the case and prepare them to listen to the case from a different perspective. As a mediator, I take a lot of time before each mediation to read the materials that are provided by each party and to speak to the attorneys for the respective clients. As a result of that hard work beforehand, I develop a perspective about each case that is also informed by my personal experience and background in litigation. From that new perspective, clients who are properly prepared to listen can hear a new message about their case and recognize opportunities they might otherwise not be open to.
This is more than simply telling mediation participants that most cases settle rather than going to trial. This is substantive information about why their case may be different than they previously imagined. With this new perspective, they have a new opportunity to reconsider what it might take to resolve their case.
Confidentiality and Flexibility in Mediation
Confidentiality is a cornerstone of mediation, because it encourages open and honest communication without fear of repercussions. Both Washington and Oregon have robust statutory frameworks protecting the confidentiality of mediation communications, with limited exceptions. For example, in Oregon, mediation communications are generally confidential unless disclosure is necessary to prevent a crime or all parties agree to waive confidentiality. Similarly, Washington law provides that mediation communications are privileged and not subject to disclosure, except in narrowly defined circumstances, such as when all parties agree in writing or when disclosure is mandated by statute.
This confidentiality allows parties to explore creative solutions and make concessions without the risk of those discussions being used against them in subsequent proceedings. However, a hardline approach, which often involves withholding information or refusing to engage in meaningful dialogue, can undermine the trust and openness necessary for effective mediation.
The Role of Mediators in Overcoming Hardline Tactics
Mediators play a critical role in addressing hardline tactics and fostering productive negotiations. In the Pacific Northwest, mediators are trained to help parties define issues, overcome communication barriers, and explore alternative solutions. They may employ various strategies, such as separate caucuses or reframing discussions, to encourage parties to move beyond rigid positions and consider the broader context of their dispute.
For example, in complex cases involving multiple claims or parties, mediators can help identify common interests and develop creative solutions that address the needs of all stakeholders. This approach is particularly valuable in cases where traditional litigation would result in a zero-sum outcome.
Conclusion
In jurisdictions like the Ninth Circuit, Washington, and Oregon, mediation is a powerful tool for resolving disputes in a collaborative and creative manner. Taking a hardline approach during mediation is counterproductive, as it undermines the process’s emphasis on flexibility, compromise, and mutual understanding. By fostering open communication and exploring innovative solutions, mediation offers parties the opportunity to achieve resolutions that are not only efficient but also more satisfactory than those imposed through litigation. Parties and their counsel should embrace the spirit of mediation, setting aside rigid positions to fully realize the benefits of this alternative dispute resolution process.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
