Legal Brief
The Administrator’s Place in the Mediation Room
By Joseph G. Jarret/School Administrator, December 2015


The mediation was doomed from the start. The school board’s attorney was a last-minute replacement who had in tow a school board representative who was without the benefit of having been briefed on the strategy of the particular case or the mediation process in general.

The plaintiff’s attorney, who was consummately prepared, launched into a settlement proposal that caught both the school board’s attorney and the board rep off guard and incapable of mustering an adequate response. As a result, a case that should have settled through mutual assent of the parties lurched into protracted litigation that cost the school board an unnecessary loss of funds, goodwill, and negative news media attention.

It’s just another example of what happens when attorneys and their clients fail to adequately prepare for mediation.

Client Participation

To belabor the obvious, mediation is defined as an alternative dispute-negotiation process in which a neutral third-party in the form of a mediator assists the disputing parties in settling a conflict in lieu of litigating the matter before a judge or a jury.

Over the course of my legal career, I have been both a school board attorney and a mediator. As a mediator, I prepared for mediation just as meticulously as I would for a jury trial.

An integral part of that preparation consisted of including the client (either in the form of the school administrator or her/his designee), in the premediation process. Not all of my colleagues agree with this practice. More than one attorney has advised me, “I just want a warm body at the negotiation table, and I’ll take it from there.”

I have a decidedly different philosophy. I believe a school leader should not only be present, but play an active role in the mediation process. It is the school leader and not the attorney who can best determine whether the board of education or school system should assent to nonmonetary compensation in the form of an apology or a change in school or board policy. The mere presence of the school administrator sends a strong signal to the plaintiff’s counsel that the school board takes such matters most seriously.

Avoiding Antagonism

Unlike a trial, where the attorneys do all of the talking and the parties’ roles are restricted to undergoing direct or cross-examination, a mediator is far more interested in the position of the plaintiff(s) and the school board’s representative than the attorneys accompanying the parties. Learning precisely what each side’s position is and what each side needs or thinks it needs in order to settle the matter is a major part of the mediator’s job.

As such, the education leader should become intimately familiar with the facts of the case, including its strengths, weaknesses and the worst-case scenario should it end up in the hands of a judge or jury. Further, it is the administrator who knows best the political underpinnings of the case, what effect a negotiated settlement will have on morale, and the person who will ultimately be responsible for explaining, and perhaps defending, the settlement to the board and the media.

Some attorneys come to mediation with an adversarial mindset or exhibit a habit of forgetting that schools would prefer to avoid being put into an antagonistic relationship with the parents of the children they are attempting to teach. So while the attorney is charged with educating the school district leader about the facts of the case, school leaders are responsible for educating the attorney about the school district’s policies and philosophy when it comes to parent-school conflict and the resolution of the same.

Needless to say, the goal of mediation is a settlement that both parties acknowledge as a fair resolution. Far too many judges and attorneys still cling to the arcane notion that a good settlement is one in which both parties leave the settlement conference unhappy but with the case resolved.

The school district administrator should be an integral part of the mediation team. His or her presence can demonstrate to the plaintiff(s) and the mediator that the school board or district is serious about settlement.


Joseph Jarret, an attorney and mediator, is a lecturer in political science at University of Tennessee in Knoxville, Tenn. E-mail: jjarret@utk.edu. Twitter: @joejarret1