Mediating disputes requires a unique way of thinking that draws upon a mediator’s prior work as a judge or litigator but reaches beyond both. What, though, does it mean to think like a mediator?

Mediators Think Narratively

Parties settle for many rational reasons. Trial costs may exceed expected recovery. The facts in a case may be a shade too dark or light to risk their scrutiny in court. And the parties may prefer a confidential settlement over the public nature of a trial.

But parties also settle because of wants and needs. Every legal action is a story — or contesting stories — involving people who, like characters, are “agent[s] struggling for … [their] goals.”[1] Wants and needs are “the basis of all characterization” because they are the desires that motivate people to act and react.[2]

Mediators are keenly aware of the connection between story and settlement. “If neutrals understand the heart of the bad blood between parties, they can tap into and work around what is driving the emotional end of it,” explained Hon. Thomas R. Allen, (Ret.), senior mediator and arbitrator at ADR Systems, when advising attorneys to tell their client’s story in mediation memoranda. “This is often where creative solutions to resolve the dispute come into play. It starts and ends with the people involved.”

Many years ago, another mediator at ADR Systems resolved a family car accident case by thinking narratively. After lengthy negotiations, the parties had agreed on a reasonable settlement figure, but suddenly, unexpectedly, at the eleventh hour, the mother halted proceedings. It was not enough, she said. The neutral could not understand this impasse until he considered the case’s inciting incident: The family was injured on the way to their vacation at a family entertainment resort. They lost a carefree, adventurous experience together, and the neutral – understanding the full story of the case – thought that the mother, without articulating it, without perhaps explicitly knowing it herself, wanted that back. The neutral discussed an idea with the defendant, who ultimately agreed to add this feature to the settlement agreement: They would cover all costs related to a future family trip: airfare, tickets to attractions and hotel accommodations. The matter settled.

Mediators Think Critically

Although a mediator is a neutral non-decision-maker in a collaborative process, that does not mean they do not still think critically about the case before them. Their thoughts on a case are greatly relevant to the settlement process.

As former litigators and, in many instances, former judges, mediators retain that refined instinct to scrutinize the authorities cited within submission materials, assess the fact patterns and apply one to the other in a syllogistic manner.[3] But as they work through mediation memoranda, they may observe “gaps in the law” cited by the parties, “legislative shortcomings” like vague language in statutes and “complex factual scenarios”[4] that can all complicate a case. Keeping all this in mind, the mediator will analyze the relevant law in the parties’ submissions, research it further and, formally or informally, assess how the court may apply the law to the matter.

A mediator’s objective perspective on how a court may think about the case is a springboard for better negotiations. It can help the parties weigh their weaknesses, strengths and risks in a new light and, thus, help them negotiate in more precise, realistic ways.

With their case’s weaknesses, strengths and risks in mind, parties can better determine what, in economic language, is called their reservation price, the absolute minimum or maximum for which they would be willing to settle.[5] Additionally, it can help the parties articulate the best alternative to a negotiated agreement (BATNA) given their position, what they anticipate to be the other side’s BATNA and what they know to be their hard limits in the negotiation.[6]

From this pragmatic way of thinking about their negotiation positions, parties are better equipped to “find trades across various elements”[7]: that is, being willing to concede on certain points in exchange for others while standing firm elsewhere to craft a settlement agreement that generates value and satisfaction for all sides. A mediator’s critical eye can be instrumental to that.

Mediators Think Intuitively

To serve the parties, mediators also draw upon their intuition, their ability to make good judgements from their experience as mediators, lawyers and judges.[8]

It is the intuition of the mediator at work when, at the start of a personal injury mediation, with the parties gathered for introductions, they speak directly to an injured plaintiff, acknowledge their pain, and express their desire, on behalf of all the parties, to settle this dispute. This is something Hon. Joseph N. Casciato, (Ret.), senior mediator and arbitrator at ADR Systems, often does. “We lawyers do this for a living, participating in mediations and settling cases,” explained Judge Casciato. “But the plaintiff is like a guest in the process; its unfamiliar to them, so there often needs to be an acknowledgement of that and what brought them here.”

Such a gesture betrays no bias toward one side. Rather, through it, a mediator simply communicates sympathy to someone who experienced a harrowing ordeal. Gestures like this are often the genesis of trust between the litigants and the mediator, which is essential to any mediation. Likewise, the mediator may speak to the defense more frankly and informally than is typical in a legal proceeding. A mediator uses their intuition to decide when and how to communicate with all parties – individually and collectively — to facilitate a settlement.

Additionally, it is the intuition of a mediator at work when they shift from the facilitative to the evaluative approach during a mediation. “Facilitative” is the operative adjective for a mediator; they guide the parties toward settlement. But sometimes “guiding” means being more forthright with their thoughts about a case and the standing of the negotiations. Are the parties circling the same issue? Is one side discounting the emotional journey of the other? Are they negotiating as though settlement is a zero-sum, winner-take-all achievement instead of a collaborative deal-making process in which parties can “trade across terms”?[9] A mediator observes the dynamics of a mediation to serve the parties as best they can.

And it is the intuition of a mediator at work when they suggest — as Hon. Michael R. Panter, (Ret.), senior mediator and arbitrator at ADR Systems, has — that highly litigious parties may paradoxically need to leave their separate breakout rooms — to participate in “break-ins,” as he calls them — and talk face to face to negotiate more effectively. Settlement may require an unorthodox approach, but by experience, the mediator decides whether that approach is right for the parties and needed to get the job done.

Mediators think in multi-faceted ways. Theirs is an interdisciplinary art in which they concurrently think narratively, critically and intuitively to make possible a much-needed settlement between disputants who probably once thought they would never see eye to eye.

…………

Hon. Thomas R. Allen, (Ret.) has over 40 years of legal experience. On the bench, he stood out as an exceptionally intelligent, even-tempered and common-sense jurist. Judge Allen served most of his judicial career in the Circuit Court of Cook County’s Chancery Division, where he settled numerous commercial and business-related cases. He brings this knowledge and a broad-based, 30-year career as a litigator to his practice as a senior mediator and arbitrator, where he has become a favored mediator of BIPA, data breach and other privacy-related complex class actions.

View Judge Allen’s Full Bio

Request Judge Allen’s Availability

Hon. Joseph N. Casciato, (Ret.) has trademarked his ability to guide even the most recalcitrant parties to settlement in his career with ADR Systems. Judge Casciato followed his 10-year legal career with a 22-year judicial career, which included working in the Circuit Court of Cook County Law Division and Law Jury. As a mediator and arbitrator with ADR Systems, Judge Casciato combines knowledge and efficiency with his energy and enthusiasm to keep parties engaged throughout the resolution process.

View Judge Casciato’s Full Bio

Request Judge Casciato’s Availability

Hon. Michael R. Panter, (Ret.) is a senior mediator and arbitrator at ADR Systems. He is known for his thorough and intelligent approach to settlements and the boundless energy he brings to the dispute resolution process. Judge Panter has more than 30 years of legal experience and brings a unique and empathic approach to counsel and their clients. He has mediated a wide variety of commercial and personal injury cases.

View Judge Panter’s Full bio

Request Judge Panter’s Availability

ADR Systems, It’s Settled. ®

…………

[1] See Gardner, John. The Art of Fiction: Notes on Craft for Young Writers. Vintage Books, 1991, p. 65.

[2] See LaPlante, Alice. Method and Madness: The Making of a Story. W. W. Norton & Company, 2009, p. 335.

[3] See Posner, Richard A. How Judges Think. Harvard University Press, 2010, p. 41.

[4] See Doori Song, Judicial Pragmatism: Strengths and Weaknesses in Common Law Adjudication, Legislative Interpretation, and Constitutional Interpretation, 52 UIC J. Marshall L. Rev. 369 (2019), pp. 371-373

[5] See Subramanian, Guhan, and Michael Klausner. Deals: The Economic Structure of Business Transactions. Harvard University Press, 2024, p. 8.

[6] Id. at  9-13.

[7] Id. at 15.

[8] Supra note 3, at 107.

[9] Supra note 5, at 15.