While conducting a mediation recently I was simply baffled by the position of one of the attorneys. The position appeared to be contrary to caselaw, contrary to common sense and just plain old contrary. I spent most of my day reading tea leaves trying to figure out if this attorney was waiting for me to play “bad cop” or was waiting for me to perform the obligatory “reality check” for his client as mediators are so often expected to do or did this guy simply need to go back to law school. I was simply confounded and beginning to wonder if I had stepped out of litigation mode too long ago to recall how this type of case was going to play out in front of judge or jury. Or horror of horrors, could I actually be wrong in my analysis?
In this situation I finally had the opportunity to have a private conversation with the attorney. I delicately explained that I generally can play any role I am needed to play but that I needed a hint from him about what was expected of me. In this case he did confess that he was having what he called a “client control” problem and he would very much like for me to step in and be the bearer of bad news. Hallelujah!! The attorney and I were seeing eye to eye and it appears after all that I was not w-r-o-n-g (I really hate that word!!)
The lesson learned here is that morse code, smoke signals and mental telepathy are not practical means of communication at mediation. If you need help from your mediator, just ask for it. You don’t need to make a federal case out of it in front of your client and ask for a private mediator/attorney caucus. Just step outside of the room for a beverage or a snack and track us down. That is why we are pacing the halls rather than sitting back at our desks. We are all yours all the time while we are mediating. Client control problem, bad set of facts, unwelcoming venue, we have heard it all and can deal with it all if we are just given a clue as to what you need from us. Just in case, I am scheduling my mind-reading course for this summer.