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Mediation Fairness

Mediation Fairness

How important do you think fairness is in mediation?



Full Transcript

What’s really funny is I flinch at the concept of fair because I don’t think there is such a thing. I think it’s what’s fair to them and what’s fair to those folks and what people think is fair. It’s about perspective and perception, I think. The words that I used to flinch at were, ‘I think,’ coming from a mediator because that crosses that evaluative line that you’re then inserting yourself into their process and, I think, risking undermining your credibility.


Now, in this particular case, this was the sixth day of the construction and defect case. We started with 17 parties. We had 15 of them resolved and it was just this one defendant and the plaintiff left in the case. This had gone on over a three-year period. So we had rapport. We had experience. We had a relationship. The only one that was new to the equation was the adjuster. She was shocked to hear me say that but that’s what happened. They went home. They came back another day and they settled it in that exact range I told them that it should settle in.


This isn’t like, ‘I’m brilliant and I know better.’ This is, ‘I’ve spent three years with this case. I know the people in the other room. I know what they’re willing to do. I know what your exposure is. I know what a jury’s liable to do with the 57 issues that your client is going to have to defend and, under the circumstances, this is a range that I think is reasonable based on everything that I’ve seen. But it needed to be delivered in a way that shook them up some because they had a different opinion, a different impression.’ He didn’t invite that and didn’t expect that and I don’t think wanted that from me in that moment.


Normally, the attorneys are asking us, ‘Come on, what do you think? Tell me what you think. You do this all the time. I want to know what you think the value of this case is,’ or something like that. Again, we’re talking in very dollar-oriented, compromise style mediations in these settings. But while he asked my opinion, he really didn’t want my opinion. He really wanted me to echo his and reinforce him with that adjuster. But that wasn’t going to get them out of the case. That wasn’t going to get the case settled. This is a situation where this attorney and this case went on for as long as it did, in part, because I’m convinced, because of the attorney’s self-interest.


I was actually doing his client a service by doing that, by coming at them with both barrels, as you said, to try and shake it up to wake the adjuster up to realize if she wants to get this thing settled, it’s got to approach it a different way. I think it’s borderline but it’s what they needed to hear, I think, in order to help get the case resolved for everybody’s benefit, theirs most of all. I think if we preclude ourselves from doing that, we risk not being as effective.


About the mediator

Lee Jay Berman Profile Pic

Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator