Evaluating the mediator's qualitative evaluation

One of the reasons practitioners select mediators with particular expertise, usually retired judges or specialized lawyers, is because, according to common wisdom, such mediators can provide a valuable, objective view--a reality check--of the strengths and weaknesses of the case based on prior experience and knowledge. Such a qualitative analysis is typically an important part of mediation dynamics. But when it comes to determining how to plug the mediator's qualitative evaluation into the calculus of whether to settle, as well as the acceptable conditions of settlement, you need to consider a sometimes-difficult step: you need to qualitatively evaluate the mediator's qualitative evaluation.

Obviously, you will typically have selected a mediator based on various factors, not the least of which is experience with the type of case to be mediated. But even for experts in a particular field, factors external to the mediation can affect the quality of the advice. For instance, the time the mediator has had prior to the mediation to familiarize themselves with the facts and remind themselves of the specifically applicable law can affect the mediator's input. So too can the mediator's personality and capacity to be flexible during the mediation as information is further refined and discussed. Even in so-called "standard cases" of a particular type, there are almost always important nuances that require thoughtful analysis. Expert or not, no mediator has a crystal ball. You need to use care to sort through the mediator's advice and predictions of possible outcomes of litigation to distinguish the reliable information from the unreliable.

So, what are some tips you might want to consider in determining the value of the mediator's qualitative analysis, especially in fields in which you might question your own expertise? Here's a nonexclusive list.

Be prepared

The first (and most obvious) factor doesn't have anything to do with the mediator at all. It involves your preparation. Regardless of your particular expertise, you need to do your best to be prepared on both the favorable and unfavorable aspects of your case derived from the evidence, the applicable law, and the reception that cases similar to yours have received in your jurisdiction, as exemplified by recent jury verdicts and settlements. For common causes of action, perhaps refer to the CACI instructions as relevant to your case and consider how the evidence plays for and against your client's case according to the instructions. For cutting edge issues, you might get an overview of the legal landscape from specialized secondary sources that can help put the case in its proper context. You can research verdicts and settlements in similar cases through on-line search engines.

This type of information is key in being able to intelligently assess the mediator's view of the case, to push back against the mediator's comments with which you disagree, and to acknowledge the comments that might well have potential merit. This is especially true if the mediator has pointed out aspects of the case that you may not have considered or may have previously dismissed. It is fine to be convinced that you are right and the mediator is wrong, but only up to a point. That is, if it sounds like the mediator's comments make sense against the background of your preparation, they probably do.

Distrust know-it-all advice

The importance of attorney preparation aside, an important tip for evaluating the mediator's qualitative evaluation is the recognition of a tell-tale sign of questionable mediator advice: providing a definitive, qualitative analysis very early in the mediation, without soliciting much input or give-and-take. The advice of the mediator who jumps to a quick, "know-it-all approach" at the outset of the mediation (often some variation of "You're going to lose at trial, so I'll save you some time and money here") is often a bluff or at least not well-considered. Such an approach is typically either a sign that the mediator hasn't expended much thought on the case, or that issues of ego (yes, mediators have egos) are playing too large a role. Beware of advice that treats your case with a figurative yawn, as if it is simply one more example of a case category on which the mediator expresses expertise. If you get the feeling that the mediator is saying, in substance, "I've seen so many of these cases, I don't need your input to understand how to settle it," don't buy into the advice.

All is not necessarily lost in a mediation with the know-it-all mediator. You may well be able to force the mediator to actually focus on the merits of the particular case with a respectful explanation of your evaluation of the evidence and law, and with inquiries as to how you might be mistaken. Maybe the mediator actually has rational reasons for the prematurely-expressed opinions. If so, those reasons obviously should be considered. But if the response to your comments is more of the same - weakly supported bluster, not informed analysis - then you know that the mediator's qualitative evaluation lacks any quality at all. In that case, you will need to rely primarily on your own assessment of the case to the extent it is important in deciding whether and how to settle.

Don't focus on the mediator's style

As can probably be derived from the above comments on the "know-it-all" mediator, another important consideration in assessing the mediator's qualitative analysis is the extent to which that analysis reflects a thoughtful evaluation of the important issues in the case. Thoughtful advice does not depend on the style through which the mediator's qualitative evaluation is ultimately communicated. Some excellent mediators can seem brusque, while others can seem almost too polite. And, of course, the mediator's style (to the extent it is known) is commonly an important factor in choosing the right mediator for the needs of the case. Further, the time available to mediate (a half-day versus a full day or longer) can affect the manner in which advice must be communicated. All things considered, don't be too quick to be turned off by the mediator's style, even if in the moment you find it grating. Be turned off by a lack of substance in the advice. You may have to listen a little harder and set aside your annoyance, but it can be worth it.

Trust a good rapport

Regardless of the mediator's style of communication, a good sign presaging thoughtful advice is whether, before getting into the evaluative analysis, the mediator has invested time in actually establishing a rapport with you and your client, listening to you, and following up with informed questions. This, of course, is the flip side to the know-it-all approach, and generally reflects the mediator's own reality check on the quality of the mediator's analysis. It often takes the form of a point-counterpoint conversation, in which the mediator asks, "Have you considered this point? How is it likely to affect the outcome if litigation continues?"  As already mentioned, litigation is unpredictable, and in most cases mediators (no less than the parties) can't predict the outcome with any certainty. The mediator's goal in providing a qualitative evaluation should be to provide advice to help the parties in their risk analysis, which is one of the important reasons the mediator was chosen. In that effort, the mediator should be willing to test the efficacy of their evaluation though the lens of the parties' positions. The mediator's willingness to do so is a sign that the mediator's qualitative evaluation of the case deserves consideration.

Appreciate a focus on specific issues

Another good sign that the mediator's advice is the product of a truly thoughtful analysis is whether the mediator has identified the key issues in the case--the points of dispute on which the case is likely to turn at trial. Frequently, the mediation briefs cover the entire gamut of the case. But for effective settlement discussions, the focus usually needs to be on the specific issues that are likely to be determinative. These issues may be evidentiary, legal, or a combination of the two, with a measure of practical, real-world experience thrown in by the mediator for good measure. Ask yourself: How well does the mediator actually understand the circumstances of the case? Does the mediator's focus on specific issues make sense? Do the mediator's practical comments (e.g., how your evidence will play with the jury) seem sound and supported? Cases tend to settle based on a clear-eyed assessment of key issues, and if you feel that the mediator's focus is helping, it's an indication that you can safely rely on the mediator's advice.

Consider the mediator's independent research

Another thing to consider is whether the mediator refers you to particular authority not in the mediation briefs as relevant to difficult or complex issues. Obviously, on issues as to which the relevant principles are well-known and commonly applied, reference to specific statutory or case authority is superfluous. More important in such a case is the discussion of how the evidence might play out under principles everyone thoroughly understands.

But not infrequently, there are issues that need input and clarification for a worthwhile evaluative analysis. For instance, in a bystander negligence case, how do the circumstances fit within the recent clarification (some say obfuscation) in Downey v. City of Riverside (2024) 16 Cal. 5th 539 that liability requires only the plaintiff's contemporaneous awareness of the injury-causing event, not contemporaneous awareness of the defendant's contribution to the injury?  Are there recent decisions on the point to which the mediator refers you? Or in a breach of contract case, are there relevant, post-pandemic authorities that might support or defeat a defense of economic impracticability of performance in light of recent events?

Other situations involving developing legal principles, or the application of standard principles to divergent facts, usually need to be discussed in the context of recent, concrete legal authorities. If the mediator has done some independent research, the mediator's awareness of, and reference to, relevant authorities is a good sign that the mediator's qualitative evaluation carries legitimate weight.

Take note of flexibility

A further tip is to assess the flexibility of the mediator in modifying or refining opinions over the course of the mediation. Frequently, the mediation itself reveals new information, or more incisive ways of viewing information, not apparent at the beginning. The thoughtful mediator typically either explains why, over the course of the mediation, the original evaluation still holds, or adjusts, perhaps even abandons, prior opinions in favor of new or more nuanced thoughts and advice. In short, the mediation becomes (as previously mentioned) not simply a reality check for the parties, but for the mediator as well. Flexibility of informed analysis is another good sign that the mediator's views are well worth considering.

Go with your gut

A common axiom by which most trial judges abide is, "When in doubt, go with your gut."  In other words, when a difficult decision has to be made, trust your instincts honed through experience. The same advice applies when qualitatively evaluating a mediator's qualitative evaluation. If your "Spidey senses" derived from your preparation and relevant experience are telling you something is wrong with what the mediator is saying, don't rely on the mediator's advice. Maybe take a break, try to clarify your concerns, and then return to the mediation and express them. Obviously, you shouldn't settle a case based on reliance (in whole or in part) on an analysis with which you are uncomfortable. When in doubt, trust your gut.

Conclusion

There are many factors at play in a mediation. In cases in which a qualitative analysis by the mediator is an important element to determine the possibility or advisability of settlement, your qualitative evaluation of the mediator's qualitative analysis will play an important role in the success or failure of the mediation, and in ensuring that any settlement is reached only in light of reliable advice.