Written by: (Ret.) Judge Kenneth Stern
Published: March 2023
There is a key to resolving cases that should be central to your efforts. Often, we have a client, or opposing party, who is so immersed in resentment and anger because of the dispute in which s/he is involved, that s/he is incapable of addressing the situation which is the focus of the dispute. Or we have an opposing counsel who postures, instead of discussing the issues.
The most common problem with such situations is that the person unable to focus on the situation to be resolved is preoccupied with the emotional perception that s/he has been, or might be, outfoxed by the opposition. Such a situation cries out for you to dip into your bag of interpersonal tactics and heed my favorite definition of all time: “Diplomacy is the art of letting the other person have your way.” This begins with explaining that the person’s own self interest is being disserved by not concentrating on what s/he really needs, which is getting the situation to yield what s/he wants.
If the problematic person is your client, you must pierce the emotional cocoon that your client has woven, by sympathizing with his or her feelings, then to point out that s/he shares a situation with the opposing party which has to be sensibly resolved. Help your client to realize that the best way to make the harsh feelings and resentments disappear is to recall the last time your client and the opposing party were dealing with one another in a civil, cooperative way.
Do what you can to bring the client’s focus to that period, and get him or her to acknowledge that they once were able to deal with one another for their mutual benefit. Then, urge your client to recall what occurred to create the dispute that now exists. Although it is likely that your client will seek to blame the deterioration of their relationship on the opposing party, point out that the client’s self interest would best be served by resolving the matter, not by prolonging the dispute.
Help your client to identify what actions and concessions by both sides would defuse the anger and resolve the situation. Urge the client to focus on what should be asked of the opposing side to help resolve the dispute. This will help you to formulate your comments to the other party during the joint opening session, after the mediator concludes his or her remarks and invites the attorneys to describe to the other side how they see the case, and how they suggest a settlement could be reached. 
If your opposing counsel is a reasonable person interested in settling the case to his client’s satisfaction, you might, prior to the mediation date, suggest a resolution based upon fostering in both clients the perception you and your client have achieved during your discussions.
If the stubborn person is the opposing party, your tactics would be shaped by the nature of that party’s attorney. If the attorney is plagued by the client’s obstinacy and is having difficulty getting the client to address the situation objectively, you might tell the attorney (regardless of whether it is true) that you had the same problem with your client, and that you used with your client the same approach you are suggesting he or she use with his or her client.
Finally, there is the situation where the problematic person is your opposing counsel. Once in a while, the attorney on the other side is a “hot dog,” whose modus operandi consists of arm waving, posturing, and threatening. If you can, convince opposing counsel that his/her client will be well-served, and will appreciate the attorney’s work, if a satisfactory solution can be created to allow both parties to put this situation behind them, and to get on with their lives. If that doesn’t motivate him or her to foster a settlement, appeal to the attorney’s self interest: stress that a happy client will return with more business, but if the case languishes for months, with attorneys’ fees mounting, the client will not likely return with more business or recommend him to others.
If your efforts do not produce a conciliatory attitude, call the mediator and explain that there’s a problem that you would appreciate his/her addressing at the mediation. Explain who’s the problem and what you would like the mediator to do, either in his opening statement (if there will be one), or in caucus. An experienced mediator can do wonders. (See article, “Recruiting the Mediator as Your Ally,” in the ADR Corner column in the PBCBA Bulletin of April 2017.)
Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family, appellate and federal cases. He also serves as an Arbitrator (AAA approved), and as a Special Magistrate, helping to move cases toward resolution by hearing motions which have been languishing on crowded court dockets. Judge Stern may be reached at email@example.com or 561-901-4968.
“For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/.
 When mediating a case, I strongly urge the attorneys to agree to such a joint session, wherein either attorney is urged to speak calmly and respectfully to the other party. Such a joint session often helps to shorten the time needed for mediation, because it helps to identify the key issues that need to be addressed, and often defuses the anger the opposing parties so often feel toward one another.