The mediation began well enough, and the factual lay of the land became clear quickly. The lawyer was there without her client, but she said she had full settlement authority. We began the dance of making a deal. The lawyer’s pro se opponent proved quite tenacious and able to state a coherent position.
The lawyer’s theory of the case was that she was a lawyer, she was legally right, and the other side was pro se, and that they would loose at trial, and that my job was simply to stick it to the other side by explaining that harsh reality.
Even suspending my disbelief in her view of the law, I was rather taken aback at the naiveté of just hoping that the mediator would abandon neutrality and join forces with one side or the other. People need to feel safe and at ease in mediation, before they will commit to do things like pay money to the other side.
When one side is unrepresented, and faced down by opposing counsel, and another lawyer is acting as the mediator, I rather doubt that many lay people feel safe and at ease. Too many suits! I like to be seen to press the lawyered party hard and early in the case, to try and build a level of trust within which pro se parties will then make a realistic offer. They may fear going to trial very much, but if they are so fearful within mediation that they cannot think clearly, then seeing the judge may seem like an appealing exit strategy from a distressing situation.
Pressing the lawyer in this case was easy, because I did not buy her legal theory. The pro se party made what I considered to be a generous offer, and the lawyer rejected it. The lawyer was looking a bit hot under the collar at that stage, and I began wondering whether she had over sold this to her client. The mediation failed, and much later, I heard that the lawyer was off the case, and that the parties had settled for themselves, much along the lines pitched in the mediation.
Word to the wise: if the mediator does not turn out to be your ally and best buddy in mediation, the mediator may be struggling to preserve his neutrality and keep the ship afloat. Please try not to sink the ship.