Keys to Increasing Your Prospects for Success in Mediation: Insights from Chief Circuit Mediator for the U.S. Court of Appeals for the Seventh Circuit

As a mediator at the U. S. Court of Appeals for the Seventh Circuit for the last 28 years, Joel Shapiro knows how to successfully mediate disputes. He and his colleagues in the Circuit Mediation Office conduct confidential mediations in fully counseled civil appeals in accordance with Federal Rule of Appellate Procedure 33 and Circuit Rule 33. They handle over 400 mediations every year with a success rate of around 40 percent. That is quite an impressive statistic given how the underlying district court proceedings resolve so many cases by ruling, disposition, or settlement. As a result, cases typically come to the seventh circuit mediators with a history that includes clearly drawn lines and vexing issues which often polarize parties and cement positions increasing the degree of difficulty of the mediation.

Through a series of interviews in early 2022, Mr. Shapiro graciously shared some of the insights he has gained mediating cases over the past three decades. What follows are some distilled down highlights from those conversations with Chief Circuit Mediator Shapiro.

What Are the Benefits of Mediation?

Mediations are a great way for parties to maintain control over the outcome of litigation through a guided resolution process with an independent third party who can bring perspective to, and provide a sounding board for, litigants. Mediators can accomplish that without the burden or stigma of declaring “winners” or “losers.”  Being a different species from judicial settlement conferences, mediations have an ability to delve deeper into the needs and interests of participants with less pressure to try to broker a quick deal. Mediations are, therefore, a bit enigmatic with an arguably more ambitious objective than a judicial settlement conference, but with less leverage because mediators do not carry the power of being an ultimate decision-maker.

Besides the sympathetic ear of their counsel, mediators are often the first (and sometimes only) independent person connected with the litigation process that will listen directly to a client’s side of the story. That can provide a form of catharsis – sometimes people just need to get something off their chest, to say things out loud to someone who will listen and not judge.  As such, mediations provide a forum for clients to obtain acknowledgement (and sometimes “tough love”) from an independent source – someone who can let both lawyer and a client feel heard while also providing an unbiased reality check.

Mediations also provide an opportunity to bring together all the main faculties of lawyering: counseling, advocacy, negotiation, documenting, and oversight. Lawyers can get creative in solving problems for clients and help limit or mitigate risk and uncertainty. According to Mr. Shapiro, “lawsuits are really coins thrown into wishing wells, and lawyers are the plumbers that try to turn those wishes into some kind of reality,” with mediation serving as a critical tool in the lawyer’s ability to do that.

What Are Some Mediation Insights Learned Over the Years?

Technique is secondary to mindset. Having the parties and their counsel engage in the mediation process with the right mindset—one open to understanding the other side’s point of view, open to compromise, and realizing that everyone cannot get everything they want—is more important to increasing the chances of a successful mediation than any strategy or technique. “Too often,” Mr. Shapiro observes, “parties attach a symbolic significance that the mediation cannot bear.” Mediations are not designed to give any party total victory, domination, or oppressive punishment. If that is a party’s mediation goal, they will be disappointed.

Try to listen more than you talk. The key to compromise is focusing not on a party’s own interests, but considering the other side’s needs as well. Parties must listen to each other to understand what they really want, and really need. Addressing your counterpart’s needs is often necessary to be able to meet yours. “It is surprising,” Mr. Shapiro notes, “how often people are wrong about what their counterpart actually wants or will agree to.” Listen and observe to understand, not just to figure out your counterargument.

There is no optimal tactic, move, or game theory. Each mediation is unique, and life is a lot messier than academics. Parties need to adjust expectations, embrace uncertainty, and get comfortable with feeling their way to a resolution in unanticipated ways. These journeys often mysteriously deliver solutions and accommodations that were never anticipated. “Mediation is not like a juicing machine, where you put a bunch of material in one end and a settlement instantly comes out the other,” says Mr. Shapiro. The mediation process evolves over time and makes use of all the inputs. Take each step as it comes. Do not worry about being perfect. There are very few mistakes in a mediation that cannot be fixed.

Take as little as possible for granted. This frees you up to respond to what is actually happening, as opposed to what you thought would happen.

Success does not happen by chance. Mediation is a collaboration. Everyone must be prepared to do their part to have a successful outcome, however that is defined (resolution or some other positive outcome).

How Can Counsel Best Use Mediation to Benefit Their Clients?

On this score, Mr. Shapiro said he could not improve on the advice he put forward many years ago, which still appears at the Circuit Mediation Office webpage: “Recognize that the mediation is an opportunity to achieve a favorable outcome for your client. Without laying aside the advocate's responsibility, approach the mediation as a cooperative, rather than adversarial, exercise. Help your client make settlement decisions based not on overconfidence or wishful thinking, but on a realistic assessment of the case. Assist clients to make decisions not on emotion, regardless of how justified they may be, but on rational self-interest. Suggest terms of settlement that maximize the benefits of settlement for all parties. Take advantage of the opportunity to talk confidentially and constructively with counsel for the other parties. If clients are present, address them respectfully but convincingly. Let the mediator know how he or she can assist you in obtaining a satisfactory resolution. Be candid. Don't posture. Listen closely to what other participants have to say. Give the process a chance to work.”

What Is One Thing That Has Been a Surprise?

Prior to the pandemic, the seventh circuit program hosted about 40 percent of its initial mediation sessions in person. From Mr. Shapiro’s point of view, conducting all mediations remotely has not been a hardship because, in his experience, there is no meaningful difference in success between telephonic and face-to-face mediations. In fact, there are some significant benefits to conducting mediations by phone. In telephone mediations you can focus on listening without distractions and reading or misreading body language and facial reactions. Thus, there is a level of protection against mental background noise and the barrage of sensory information that is often misinterpreted. There is also protection for parties and counsel from the discomfort of sitting across the table from people they have reason to dislike. Parties are present to one another without the disadvantages of being face-to-face. In Mr. Shapiro’s experience, “phone discussions allow the litigants and the mediator to develop a sense of intimacy that is not always achieved in person.”

Is There a Secret to the Success of the Seventh Circuit Mediators?

First, mediation is all the circuit mediators do. It is their full-time job, and they take seriously the privilege and delicacy of their work. Second, because they are cloaked with the court’s authority, they take their responsibility to the court—and their identification with the court—very seriously. They are dedicated to the integrity of the process. Third, being an extension of the court, the Rule 33 mediation process is extraordinarily respectful of the litigants and demands the same of them toward one another and toward the mediation. Fourth, through years of experience with every kind of case, situation, conduct and negotiating tactic, they have accustomed themselves to making no assumptions. They take each case as it comes, practicing the “Three P’s:” Preparation, patience and persistence.

In Mr. Shapiro’s view, his work is less about pulling rabbits from hats than about helping people to find their way out of a jam. His parting insight is perhaps as obvious as it is profound: Mediators don’t settle cases, parties and counsel settle cases. The mediator provides guidance, a steady hand, and a calm influence, but does not make the settlement happen. Only the parties can do that. As such, parties and their counsel need to take ownership of, and responsibility for, the process and the outcome.
To learn more about the Circuit Mediation Program of the U. S. Court of Appeals for the Seventh Circuit visit https://www.ca7.uscourts.gov/mediation/mediation.htm.

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Edward Casmere is a litigator, negotiator, and trial lawyer at Riley Safer Holmes & Cancila LLP in Chicago.