Jeff Trueman, an experienced Maryland mediator and Pepperdine LLM candidate, wrote an excellent article about the challenges of lawyers, mediators, and insurance claims professionals in mediation.

He interviewed subjects about their problems in mediation, and his study provided evidence of professionals behaving badly, very consistent with my post about BATNAs and the emotional pains of “positional negotiation.”  He specifically asked about challenges, so this study doesn’t represent the full spectrum of behavior in mediation, which often works much better than subjects described in these interviews.

Here’s his summary of what he found in his interviews about conflicts “across the table”:

Participants say that they want to cooperate and trust each other, but they engage in competitive steps to prevent this, such as withholding critical information from the other side, overconfidently predicting their success at trial, and misleading their counterparts as to what will resolve the dispute.

They claim to want fewer frustrations for themselves and, at times, their opponents when bargaining, but they posture and fend off meaningful moves from party opponents.

Plaintiffs say they want meaningful responses from opponents, such as a “real” offer, for example, but they fail to make “real” demands, and they make misleading moves in response to decent offers.

Defendants say that they want realistic demands, but they fail to make realistic offers, and they take advantage of plaintiffs when decent demands are made.

Lawyers marvel at magical, miraculous developments in mediation, but they criticize processes that bring them about.

They want to achieve good results for themselves and their clients, but they do not want to invest the time and effort.

Mediators wish more “good” counsel existed.  Lawyers wish more “good” mediators existed, but they are reluctant to consider mediators who are new to them – even if the mediator is reputable.

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