Page 22 - Pierce County Lawyer - January February 2025

The Mediation Dance – PART I
“Would you like to dance?”
Many of us remember how awkward that question
felt in middle school. And sometimes posing the
question “would you like to mediate” feels similarly
awkward.
“Will they say no?”
“Will they think I’m weak?”
“Am I ready to dance (mediate)?”
These are fair questions. It turns out that there is a lot of social
science built into mediation. Knowing when to begin, how to
move throughout the dance, and when (if ever) to walk off the
dance floor, is important for both you and your client to avoid
stepping on your dance partner’s toes.
In part one of this two-part article, we will explore the first
phase of the dance: timing, mediation styles, opening numbers
and the number of moves.
When is the right time to mediate?
The answer is – it may always be the right time, but each side
needs enough information to make an informed decision. More
often, parties are pursuing early mediation at the claims stage or
the initial filing of litigation. Research bears out that this makes
sense. Litigants are more likely to feel satisfied with the justice
system when mediation is explored at an earlier stage.1 And
the more protracted litigation is, the more difficulty settling
a case becomes, because litigation generally polarizes parties
and issues. You may have “nailed” your deposition against
Corporation X, but now it’s become personal for the president
and is a matter of principle.
Instead of asking the awkward question, “would you like to
mediate,” come up with a phrase that does not tip your hand,
but states why both parties may want to consider this option.
For example, in an Employment case you may say something
like, “in our experience trying these cases, going to early
mediation makes sense in order to minimize the impact on
both employer and employee.” Or in a Personal Injury case with
admitted liability, “hey how about before we get into a battle of
the experts and IMEs, we hit pause on discovery and look for a
mediator?”
Questions to ask yourself and your client about whether it’s
the right time to mediate:
• Do we have the information we need to make an
informed decision and create leverage in the case.
• Is this a relationship that needs to be maintained, e.g.
employment case, contract dispute, construction matter,
divorce with custody.
• Is it likely that the plaintiff will recover attorney’s fees or
costs.
1. See Adam Noakes, Mandatory Early Mediation, A Vision for Civil Lawsuits Worldwide,
36 Ohio St. J. on Disp. Resol. 409, 415 (2020).
2 2 P I E R C E C O U N T Y L A W Y E R | J a n u a r y / F e b r u a r y 2 0 2 5
• What is the likelihood of success at dispositive motions
once evidence is developed.
If you feel like early mediation is a good idea, but you need
more information, consider a stay of formal discovery and an
agreement to an exchange of information.
Choosing the right mediator
Stating the obvious, both sides need to feel comfortable with
the mediator. However, in Personal Injury cases a seasoned
insurance adjuster can live with most mediators if the plaintiff
and plaintiff ’s counsel are comfortable. An overlooked question
in determining the right mediator is, to ask yourself whether
gender, race or cultural norms may come into play.2
As explained below, there is a science to mediation, and that
science may vary depending on cultural norms, or whether a
party feels comfortable with the mediator. For example, “right
mediator” for the plaintiff in a sexual assault case, may look a
lot different than the right mediator in a contract dispute case
between contractor and subcontractor.
Mediation Styles
You may not realize it, but most mediators switch up the dance
tempos and style during a mediation. There is evaluative,
facilitative, integrative bargaining and distributive bargaining.
In evaluative mediation you can expect active listening, an
assessment and evaluation of the case, as well as an evaluation
of the case. In contrast, in facilitative mediation, a mediator will
look for collaboration, open-ended questions, diffusion, and
acknowledgment of conflict. A mediator should never start out
as evaluative, but instead should take time to get to know your
client, the tone of the case, and underlying issues.
But what about distributive/integrative bargaining? This is often
seen in employment matters and contract disputes but may spill
over into other matters. In the book “Getting to Yes,” authors
Fisher and Ury explain the dilemma of the orange. Imagine
there is an orange shortage, and two persons want the last
orange, and each are willing to pay for it.
2. Fred D. Butler, The Question of Race, Gender and Culture in Mediator Selection,
Disp. Resol. J. Nov 200/Jan. 2001, at 36.