HR Legalist

How to Play your Mediator

Employment disputes are often mediated as an alternative to trial. While most employment attorneys represent clients in mediation, few actually serve as a mediator. I trained as a mediator and launched a mediation practice after representing many clients at mediation. This transition was an eye-opening experience. Here is what I wish I knew before:

1. Mediators are advocates. Mediators are impartial and neutral. They have no allegiance to either party. That said, they do have an agenda—they are advocates of settlement. This is what they are retained to do, and settling cases makes them feel good. They also need to be advocates of settlement to be effective—otherwise, they are simply serving as a conduit to shuffle offers and demands between the parties.
2. Mediators are not advocates of fair settlement. In advocating for settlement, a mediator has only one goal and that goal is to get the case to settle on terms that both sides will agree to.
3. Mediators view your weakness as their opportunity. At the end of the day, they are trying to figure out what number everyone will agree to and persuade both parties to accept that number. If they feel that one party has less to resolve than the other, they will lean hard on that party to make concessions.
4. It’s difficult to forecast whether a case will settle. It is common for parties to ask me early in the mediation whether I think a case will settle. The reality is that my predictions are often wrong. There are cases that I thought would settle that ultimately did not. I am also at times surprised that a case did settle. For this reason, I always encourage the parties to keep mediating until we settle or reach a genuine impasse. I never end a mediation because I think the parties were too far apart for it to be worth continuing.
5. Your mediator depends on you for ammunition. A good mediator is a good listener, who not only makes the parties feel heard but also constantly analyzes what the parties are saying and reads between the lines. A good mediator also is a quick study of the issues in the case. That said, you will always know your case better than they do, and they rely on you to help them to understand the leverage points they can use with the other side and when to use them. Some of the most effective attorneys who have mediated with me close each private caucus session with an explicit suggestion of what leverage points I should use with the other side. While mediators are advocates for settlement, it is still important to make them like you, your client, and your case, as this will make them more effective in using your leverage points in the other room.

Andrew Horowitz is an attorney and mediator in Obermayer’s Pittsburgh office with a focus on employment law. He is on the approved mediator list of the U.S. District Court for the Western District of Pennsylvania.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.