Six Attributes of Great Mediators

Our firm pursues medical malpractice claims for veterans and military families nationwide. Our cases all involve the Federal Tort Claims Act (FTCA), meaning when we file suit it is in Federal Court. Personally, I have probably appeared pro hac vice in at least 25 District Courts, many of them more than once. We have been to settlement conferences with Magistrate Judges and private mediators all over the country. In my 30 plus years as a medical malpractice defense lawyer in Virginia, I participated in more than a few mediations. Having been on both sides of the v, I have a broad perspective of what makes for a good mediator. 

About three weeks ago, we had a mediation in one of our FTCA cases. It was in a district that orders early mediation. Frankly, most of my prior experiences in other venues have not been particularly good, usually because the other side could not (or would not) do what needed to be done to evaluate the case and get the necessary authority early on. I went into this most recent mediation with a little more optimism as the AUSA defending the case seemed to take it seriously and he struck me as a straight shooter. Once the mediation began, however, my optimism faded. We started earlier in the morning than usual, but by early afternoon we were still very far apart - $1.75 million apart - and the other side was at a number that clearly was not remotely in the range of realistic.  To jump to the end of the story, ten days after the end of the mediation, the case was settled. And the mediator deserves total credit for making this happen. 

With the numbers as far apart as they were, most mediators, even good ones, simply would have declared that the case was not ripe for resolution. That would have been the end of that. We would have proceeded with discovery and more expenses would have been incurred. Most likely, the case would have settled later and maybe the net to the client would have been a good one. Or maybe not. What happened here was that when the retired judge mediator saw that the traditional “shuttle diplomacy” was not going to work, he backed off the process. He kept the discussion going even though the last numbers exchanged were well before lunch.  In the end, the judge suggested a “mediator’s number.” Ten days later, following an interesting “double blind” process, it worked. While well below our last number, the resolution was a fair one and our military veteran client was pleased.

This experience made me think about what makes a mediator great. Below are some of my thoughts and observations:

1.   Understanding the subject matter is a huge advantage. While he may not have had great expertise, our mediator had an appreciable understanding of medical malpractice cases. It has surprised me the number of times I have had to educate a mediator or magistrate judge about very basic issues of these often complicated cases.

2.   The mediator has to understand the peculiarities of the venue. If practicing in courts all over the country has taught me one thing, it’s that there are huge variations, even in the supposedly standardized Federal courts. The mediator has to have a keen sense of how things happen in the jurisdiction where the case is actually pending. In our recent mediation, the retired judge knew the cast of characters very well and I think that hugely influenced both sides. 

3.   It’s okay for a mediator to have an opinion about the value of a case – and to be blunt about that opinion. If both sides are being eminently reasonable, then a mediator who just takes numbers from one room to another can get a case settled. We all know that is not always the case, however, and just trading figures can quickly lead to an impasse. A case that should be settled is not. The best mediators successfully challenge the side that is being unrealistic and understand that “splitting the baby” is not always the best approach.

4.   Good mediators give the parties, especially the plaintiffs, their “day in court.” People want to be heard and the whole legal process makes those not familiar with it nervous and wary. In our recent mediation, the mediator spent more time just listening to the plaintiff and his wife than I have ever seen. It paid off as they kept the faith even when things seemed to be breaking down. I contrast this to a magistrate judge we had a settlement conference with a few years ago. There, the judge announced what the case should settle for (which was reasonable) and he was not interested in what any of us had to say. We very nearly did not get that one settled. 

5.   A mediator has to be willing to change tactics to adapt to the situation. This seems obvious, but I have seen many times where a mediator’s creativity or “thinking outside the box” got a case settled. I have seen at least as many instances where a mediation got bogged down because the mediator could not or would not change his or her approach.

6.   The best mediators exude confidence and take charge of the process. They own it. Their confidence has the effect of instilling confidence in everyone else, including the lawyers. The funny thing about my recent mediation is that the judge remained so confident and assured that we left the mediation with a sense of optimism. The mediator’s confidence was infectious and I suspect that inspiration mitigated the natural process of second guessing yourself after the meeting is over. 

In some respects I am stating the obvious, but I was inspired by what I saw last month. If nothing else, it was a reminder that in this business we always have to make a conscious effort to keep a fresh perspective. The retired judge who has been at this longer than I have certainly does.

To learn more about our VA and Military Medical Malpractice team, visit vet4vet.net.