Florida Mediator Asks, 'Can We Talk?'

As a member of The Florida Bar since 1989, Michael Orfinger has a broad base of litigation experience that allows him to effectively mediate a wide range of disputes. To schedule a mediation with Michael, please visit our online scheduling page or call his case manager, Cathy McCleary, at 800-863-1462.

Michael S. Orfinger

Consider the following grown-up version of the children’s game of “telephone”.  Two parties have a legal dispute with one another. Mistrust, misgivings, and anger increase once both parties have “lawyered up".  In the early going, one client articulates his position to his lawyer, who in turn conveys it to the opposing lawyer.  She in turn relays it to her client, who responds with her own position. The lawyer dutifully conveys her client’s position to the first attorney, who relays it to his client, and so forth. Sometimes, this will produce a resolution; at other times, it will produce nothing. But what happens when things get lost in the translation?  What if the client doesn’t accurately understand what his or her lawyer is saying, or vice versa? One garbled or misunderstood communiqué leads to the next, and soon any hope the parties had of reaching an amicable solution has diminished.

Mediation helps alleviate this problem by injecting a trained neutral into the process. Using techniques such as reframing and active listening, the mediator can get a very clear picture of the respective clients’ interests.  Because the mediator is not an advocate, he or she can convey accurate information in a non-adversarial way to assist the parties with their decision-making. But sometimes, in the business world, mediation presents another invaluable opportunity – the chance for the respective decision-makers to talk directly to one another under the shroud of mediation confidentiality and privilege.

Provided the parties have their emotions in check, I will sometimes ask the principals of corporate parties to meet privately, while I serve primarily as a “fly on the wall”.  The best time for this meeting is about midway through the mediation, if and when one party begins to show substantial resistance toward settling. Nobody makes any commitments or agreements without first talking to their counsel, and I reserve the right to terminate the discussion if in my view the discussion is degenerating. In my experience, the discussion rarely degenerates; on the contrary, the principals tend to speak candidly but with a civility they have not displayed toward one another in quite some time. After this conference is over, I caucus with each party and its counsel to get their assessment of whether the discussion was helpful.

What does this accomplish?  For the first time in a while, the parties are dealing with each other as people, and they are doing it without the swords or shields of their lawyers. Mediation confidentiality encourages candor; I appeal to the dignity of the positions the principals hold in their respective businesses to encourage civility. The principals may be able to lay to rest or leave open the possibility of working together in the future; the answer to this question is likely to affect the range of potential settlement options.  Most of all, however, direct interaction keeps the parties talking to one another, and if they remain motivated to keep talking, their odds of settling increase substantially.