On Labor Day 1943, at around 6:06 p.m., the Congressional Limited, traveling between Washington, D.C. and New York City, suffered a catastrophic axle failure at Frankford Junction in Philadelphia. The cause was a “hot box”: an axle bearing that overheats from friction until the axle itself gives way. Seventy-nine people died. The subsequent investigation found that yard workers had seen flames coming from the bearing, and they telephoned ahead to have the train stopped, but the warning arrived too late. Had it come minutes earlier, the engineer could have slowed the train to a halt, inspected and repaired the bearing, and proceeded safely. Axle failures are usually preceded by a high-pitched sound – a squeal. Modern railroads now place sensors along the track that can detect an overheating bearing and signal the crew to slow the train down or stop it. This solution to a potentially calamitous end to the journey is instructive for mediation.
We have all been there. The train is proceeding down its track. Progress is fine; there are bumps and jostles, but the path is generally forward. Which station it will reach is up in the air. The train could even be sidetracked to a dead end, but the passengers will be safe. Then, progress slows, and a squeal rises from below. Sometimes it is just that the parties cannot see eye to eye. But sometimes the source of the friction is a difficult advocate – the proverbial squeaky wheel. His behavior might be par for the course in a courtroom. But my experience is that useful theatrical presentation becomes harmful hysterical hijinks if it crosses the line into ad hominem. When that happens, the warning signs of impending disaster are clear.
Mediation works best when both sides feel that the engineer has a firm hand on the throttle and control of working brakes. The squeal of the blustering advocate can have many sources: a weak case, an uncooperative client, an unmoving opponent, or the personality or current mood of the advocate coming to the forefront in a counterproductive fashion. It comes in many tones. Personal attacks on the competence or effectiveness of opposing counsel and repeated invocations of “bad faith” are two examples. Each one is a piercing alarm to the mediator that something is amiss. A squeaky advocate makes little, if any, contribution to a serious effort of disputing parties to reach a settlement, seeding doubt as to whether he wants to reach a settlement at all. Mediators should be proactive in preventing counterproductive conduct and prepared to take action to limit it – that is, to apply the brakes and shut it down.
Anyone who has ridden the New York City subway knows that the occasional screech is part of the normal background noise of an uneventful trip. The mediator’s superpower – active and attentive listening – will usually let the mediator know when the sound is something of concern. There is a material difference between “your evidence is unconvincing” or “your claim is weak” and “you are unconvincing” or “you are weak.” The former, with accompanying reasoning, may help opposing parties and counsel properly assess their risks. The latter, when directed at an adversary, may hinder productive negotiations.
The first line of defense is preventive maintenance. At the outset, the mediator should build a mediation process that is safe, where all participants are focused on settlement as their common goal, and in which civility is the rule. If unproductive conduct occurs, the mediator should try to nip it in the bud by promptly calling it out as unhelpful to the perpetrator and try to ascertain and soften its impact on the target. When those steps fail to stem the “squeaky” behavior, the mediator should do what a train engineer would do: slow the train down. The mediator can call a recess – the mediator’s equivalent to a child’s “time out” – perhaps allowing everyone’s temperature to return to normal. Or the mediator can opt for another parent’s standby – diversion by, for example, politely turning attention to the advocate’s client and asking about matters only the client can answer.
Caucusing will often be a highly effective way to move forward if the squeaky advocate continues to squeak, especially when there is no relationship between the parties that needs to be preserved. Once separated, the parties and their counsel will hear information from the other side that is filtered by the mediator. The mediator carries substantive information and questions between caucus rooms, but nothing requires that the venom make the trip. An accusation that “they are acting in bad faith” can arrive next door as “they need to see movement before they will move.” The substance arrives intact, but the heat stays behind. Filtering can include refusing to convey matters that the mediator believes will adversely impact negotiations, even when asked.
Regardless of whether the parties caucus separately, it may be helpful for the mediator to speak with the difficult advocate without his client and adversary. The goal of this type of caucus is to gain an understanding of the source of the conduct, and then to stop it. If the problem is a weak case, the caucus is the place to test it and to explore more effective ways to move the other side. The bluster may be client-driven. If so, the mediator can propose ways to partner with the attorney to address the client’s concerns. If the problem is an unmoving opponent, consider changing the process, e.g., bracketing or principal-to-principal communication.
Rarely, an advocate may target a mediator with personal attacks or engage in other inappropriate conduct directed at the mediator that is not conducive to settlement. Sometimes this happens after the parties have been separated, when the mediator is the only person left in the room who is not on the same side as the advocate. Individual mediator responses will vary. The mediator’s response may be direct opposition, diversion, avoidance, or something else. Ultimately, the best course of action is one that demonstrates the mediator’s continued neutrality and impartiality, and that is intended to keep the participants engaged in the negotiation process that the mediator has constructed and is driving.
Finally, when nothing else works, pull the emergency brake or at least put a hand on the cord. The threat of being sent to bed without any dinner might work. If the threat of ending discussions does not work, adjourn the session and, with the agreement of the parties, reconvene when the friction has had time to dissipate. That is not a failure. The lesson of the Frankford Junction disaster is that a train stopped in time can be inspected and repaired and can proceed again. It is the train that keeps running hot that never arrives.