Marshall McLuhan famously wrote, “The medium is the message,” referring to modern mass communications. When people come to mediations having no intention of negotiating, the mediation is the message, and it’s one that can be stated rudely in two words.

This tactic is sometimes used to send the message: “We are not going to offer you anything,” or “We are not going to accept anything less than our current demand.”

Is going to a mediation for an ulterior motive a legitimate tactic? It may be a strategic one, in that it sets the stage for a dramatic (and economically wasteful) settlement on the courthouse steps. In court-sponsored or court-ordered mediations all parties and counsel have an ethical obligation to the court not to waste judicial resources. In some courts’ rules parties must negotiate “in good faith.” That’s a grand idea, but difficult to enforce, as anything said in confidence to a mediator in during a mediation cannot be divulged to others without that party‘s permission.

Image that an attorney tells me privately at the outset of a mediation, “I’m not going to move at all from our current position.” I can’t pull the plug on the mediation at that moment, because the statement could be posturing, as so many statements made in mediations are. If it becomes the refrain of the song, sung over and over for several hours, I may suggest that counsel meet together privately, with me in or out of the room as they prefer, to answer a simple question, “Is there anything we can get done here today?“

There is a similar tactic, primarily used by plaintiffs‘ attorneys, which is to begin the mediation stating a higher demand than was communicated to the defense counsel before the mediation. If the higher demand is communicated to me, I am bound to convey it, but would first urge counsel two return to the pre-mediation demand to make a walkout by the other side less likely. (I don’t mean to pick on plaintiffs‘ attorneys; if the defense has not made an offer before the mediation, it is hard for defense counsel to move to an offer that is below zero.)

A lot of game strategy goes into mediating a case. The mediator‘s primary contribution to the process is his or her neutrality. Hearing adverse positions stated dispassionately by a neutral person somehow makes the message more palatable.

Mediators do not “win” cases that settle, but there are things mediators must not lose: their cool, their neutrality, and their credibility. When a case settles, the real winner is our civil justice system.

—Louie Castoria