When does reality testing cross the line?

When I first announced to friends and colleagues that I was starting my mediation practice, I received a lot of advice. The advice from the experienced litigators seemed to be the same: Don’t be one of those mediators who shuttles between rooms and simply says “They’re at $50k. What are you going to counter with?” Experienced litigators want the mediator to reality test their clients for various reasons. Along those lines, Geoff Sharp of mediator blah…blah… posed an interesting question the other day,

Do some mediators scaremonger the parties at mediation in the name of reality testing?

It was in some ways a rhetorical question, but one that I think should be discussed. As Abe Ordover puts it in his book Alternatives to Litigation,

Helping parties understand the reality of their situation and its possible solutions is one of the main reasons attorneys suggest mediation to their clients.

But where do you cross the line from “helping parties understand” to forcing a party into a settlement position? In my experience, what the attorney typically wants is someone to help the client come to a realization of the weaknesses of his case. You also want to help reinforce the strengths because, as my wife once said after coming back from an HR training seminar, “You have to give them a little meat with their bread. Nobody wants a bread sandwich.” The metaphor of course being that bread is the bad news and meat is the good news. But since most people are convinced their position is “correct,” for whatever reason, the key to achieving a good settlement result is helping them understand that others might not see it that way.

For my money, the most effective method of accomplishing this is to ask pointed, but open-ended questions, such as, “Plaintiff just told me that [insert damaging testimony here]. If a jury hears that, how do you think they will react?” or “I understand you are asking for $50k. What evidence do you have to support your damages calculation?” These tend to make the parties think critically about how a third party might view their case in a non-judgmental manner.

While it may seem easy for an experienced former litigator acting as mediator to say, “Well, I had a case like this, and the jury entered a defense verdict;” when the mediator starts interjecting his own opinion and experiences, I’d say he’s started to cross that line. I take the position that if the parties wanted an opinion from a third party, they’d have submitted to an arbitration or stipulated the matter to the trial calendar. The mediator who seems to assert a position runs the risk of further polarizing the proceedings, which runs antithetic to the purpose of mediation.

I don’t think there is a right or wrong answer to this question, and there may be cases in which it is permissible, or even beneficial for a mediator to make value judgments about an argument or bargaining position. I’m interested in hearing what other practitioners think on this subject.