Cover Me, Come on Baby, Cover Me

Recently I was participating in a mediation as counsel for one of the parties.  It was a somewhat complex case with multiple parties, so there were several moving parts that the mediator had to coordinate.  Over time the mediator helped the parties close a pretty significant gap and eventually the case settled.  As usual, the people getting money took less than what they walked in feeling entitled to and the people writing checks wrote bigger ones than they thought they should have to when they arrived.  So how did that happen?

I observed something when the mediator was interacting with my client, a common theme that ran through the things discussed in our caucuses.  The mediator could see where the case needed to go to resolve, the mediator could see the position of my client and what was blocking them from getting to a point where the case could settle.  In this particular case, I think the mediator sensed that one issue my client would have would be explaining to their boss why they should pay more than what had been settled on prior to the mediation, likely a very common dynamic when dealing with representatives of large institutional clients.

Now there weren't any real magic words that the mediator used at this point.  They really just went over points that, candidly, my client and I had discussed prior to the mediation.  Sure enough though in fairly short order, my client was well on board with the new position and was agreeing to champion it within the company.  Some short internal communications took place and voila!, a change in position emerged.  The case resolved.

So again, how did that happen?  It occurred to me that what the mediator had done, was to give my client something very important, cover.  The change in position could easily be justified with, "Well the mediator says XYZ."  I thought about what must have gone on in other rooms.  The Plaintiffs in the case, in my opinion, walked in with unrealistic expectations.  I thought of times I had represented clients with unrealistic expectations.  One dynamic that an advocate has to be concerned with is where a client feels that the lawyer is not advocating vigorously enough.  This dynamic can cause some lawyers to temper comments to their clients (I know it did me early in my career).  I can think of many mediations I've participated in where after talking with my client and a mediator I was able to recommend a compromise I knew made sense a little more vigorously than I had before talking to the mediator.  What happens there?  The mediator gave me cover to change the tone of my recommendation to the client.

One very common element covered in mediation training is the idea that you should get people to focus on their interests instead of their positions.  In the examples I went through above, people were locked into their positions.  The institutional client feels locked into the institutional position, the lawyer is locked into the position of supporting their clients position.  The mediator though, by providing cover, creates a safe space  for the person in question to take the focus off of their position and look at what is in their best interest.

Don't think the need for cover exists only in dealing with representatives of large institutional clients either.  Maybe it's a small two person business, but the representative who is present at the mediation doesn't want to change positions from what they've discussed previously with their partner.  We all need a little safety to make tough decisions.

A very similar dynamic goes on among musicians playing together in a band.  At some level, everyone wants to play right.  As we talked about before though, wrong notes are inevitable.  Part of what band-mates do is stay aware of what's going on with the other musicians.  If something goes wrong with one person, the others will jump in and cover things.  This creates a safe environment for all the musicians to take risks knowing that if there is a problem, the others will cover for them.

So when mediating, include the issue of cover on your list of things that are constantly evaluated.  Ask yourself what is locking someone into certain positions.  Is there an outside dynamic going on and, if so, do you have the opportunity to give that person cover to look at things in a fresh way.  Arm yourself with cases of rhetorical umbrellas that will give people the cover they need to to consider all the relevant issues and then make an informed decision.

Today's post title comes from the Bruce Springsteen song, Cover Me, off of the Born in the USA album.