As stated in my engagement letter for mediation, I encourage parties to share position statements or letters before mediation begins. These are not intended for me, but more so for the disputants.
The premediation letters should be written for the eyes of the “other” client, and can begin to manage expectations, clarify liability, distinguish the claimant, and humanize the corporate defendant.
When done correctly, you can introduce key themes to be reinforced during the actual mediation session. These communications cannot be “filtered” before reaching the clients. There is no equivalent opportunity during litigation to speak about things directly to the other side within the ambit of confidentiality and privilege.
Occasionally, we see letters directed to me or opposing counsel that are written in an angry or condescending tone. Sometimes the letters belittle the plaintiff or describe them as a malingerer or liar. Some letters accuse a negligent defendant of gross mismanagement beyond the pale of the litigated dispute or are just mean-spirited or insulting.
Unfortunately, some lawyers write premediation letters that sound like a motion for summary judgment or are hostile and counterproductive. Some of these letters start out okay and then take a turn for the worse.
Mediation is not an adversary proceeding. Perhaps some clients like having their lawyer give the other side a good rebuke, but since it never leads to capitulation, what’s the value in vituperative language?
Sometimes the premediation submittals suggest the opening session may be an exchange of hurtful words, and the tone will be unproductive. If the temperature in the room gets too hot during the joint session I, as the mediator, can and will shut down the intemperate language, but truly this is a lost opportunity.
I now have learned there are some key words that signal when one side or the other has lost sight of the big picture, and where good communication ceases. When directed to the other side, these words cause upset, beg for retaliatory comments, cause one side to tune out, and are never helpful in getting the case resolved.
With apologies to the late comedian, George Carlin, here are the TEN DIRTY WORDS you cannot say in mediation:
- “Attorney’s fees” – as in we “expect to recover them” or “the plaintiff will pay them when we win summary judgment,” which invariably is rubbish. Recovery of attorney’s fees per se in mediation almost never happens. When demanded in a premediation submittal, it misleads the client into believing fees might get paid. You are blowing smoke which the client might inhale. Nobody really pays attorney’s fees absent a specific fee recovery statute, and any fees are just priced into the settlement.
- “Bad Faith” – describing one side’s articulated stance, paltry counteroffer, or failure to pay. Under Florida law there is no legal requirement that one participate in “good faith” during mediation and “bad faith” is substantively meaningless outside the arena of insurance law.
- “Specious” – Specious positions are unethical to assert, so you are implicitly attacking the ethics of the lawyer asserting them. More important, lay people don’t know what “specious” means. Nor will they believe their lawyer is doing anything wrong. Using the word “specious” is a species of the genus “Loquela Gravis” – offensive speech.
- “Frivolous” – See “specious.”
- “Sanctions” – as in “we are likely to recover sanctions for the defendant’s discovery abuses” is pointless ranting irrelevant to a mediated outcome. Who pays sanctions in mediation? Why mention it now? The sanctions get priced into the settlement. You are just creating a potential conflict (see Malpractice below).
- “Malingerer” – describing the injured claimant who is believed to be sandbagging by not returning to work. Name calling like this hardly begets compromise. The claimant may not know what that word means and, if they do, they are insulted. If they are a malingerer, they know it, so what’s the point in telling them or their attorney in writing, much less in opening session?
- “Liar” – often in the same rant as “malingerer.” It is not helpful. You can challenge credibility with other words that are not morally tethered.
- “Ridiculous” – describing a claim, defense, or position. See “frivolous.” Use “hard to prove,” “tenuous,” “improbable,” etc.
- “Malpractice” – describing a mistake by opposing counsel which is not the business of your side to assert. Asserting malpractice creates a serious conflict issue for the lawyer and the supposedly aggrieved client, and ultimately threatens the mediation process. What would you have the mediator do with this information? Like sanctions and fees, malpractice gets priced into the attorney case valuation.
- “Absurd” – see “Ridiculous.”
Use of these words usually means someone has written the premediation letter hastily or in an agitated state. Using these dirty words causes the reader to discredit or discount the other points which may be valid and thus worthy of consideration.
When these dirty words are said in the joint opening session to the other side, you are doing a disservice to your client. These words do not lead to compromise and cannot help you get the case resolved. Remember, it only takes one “ass” to spell impasse.
 Case management orders in state and federal court routinely direct the parties to attend mediation “in good faith” but this is an amorphous aspirational, and ultimately unenforceable standard. First because one cannot create a rational objective standard that could be fairly enforced, and in any event the robust confidentiality privilege and confidentiality protections of Section 44.405 make consideration of good or bad faith communication and non-verbal assertive conduct impossible.