“That was a poor landing by the captain,” grumbled an unamused passenger to a stranger across the aisle.
“Every flight is a risk. We must not take for granted that we are alive to complain,” the other responded.
If we consider the mediation process as a flight from A to B, with the mediator assigned with the responsibility to pilot the parties. The opening statement would be the take-off stage where the captain makes sure the passengers are all buckled up for comfort. The brief introductory stage allows the captain to instill confidence and trust among the passengers. The joint-conference is the stage when the seat belt signs are off and the flight cruises through at a desired altitude. Similar to flying, mediators sometimes may get into auto-pilot mode, but very often there will be turbulence and they will have to glide the parties back to common ground. At times, there are crises, and the captain may need to make an emergency landing, miles away from the preferred destination. Even in the harshest of weather, it is imperative to land safely, and this landing in a mediation is the closing statement or as I like to call it – a ‘mediator’s touchdown’. The closing is crucial in emergency landings, when resolution is out of sight but the conversations need to be brought to a halt, tactfully and transparently.
A mediator’s touchdown is essential to disputes that do not settle on a scheduled date within a given time frame and require more will and effort. There is so much at stake for parties who participate in the mediation with different voices telling them different things. I have heard and witnessed many practitioners and academics term an unsuccessful attempt at settlement as a “failed mediation”, knowing that the attempt doesn’t need to go in vain if concluded effectively. Much has been written on preparing and performing as a mediator, but we must not forget the importance of presenting a respectful conclusion of an imperfect mediation conference.
No matter how unproductive the session may seem at the surface level, there are positives that we need to highlight. These positives could vary in their implications, from something minor – a compliment or even an embrace, to something more significant like a discount or a waiver on the disputed claim or an honest apology. It’s important that a mediator make note of these moments to avoid frantically scanning through the short-term memory when it’s time to land. Sometimes, disputants reach an agreement on the minor issues circling around the core dispute, and this realization is often lost in the confrontational bargaining battle that ensued for the key issue. The mediator must do justice to the parties’ efforts by valuing the landmarks scaled during the journey, so that inspires them to scale the peak in the future. Concluding an unsuccessful settlement attempt, the mediator appreciated that the siblings in a seven-year-long property dispute had spoken to each other courteously, even while in disagreement. The mediator commended them for their civility even in hostility, and underlined how they had all regretted not being together during their mother’s last rites. In response to this, the eldest brother suggested drinks with the mediator to celebrate the siblings speaking to each other for the first time since their mother’s death.
There are situations that will go out of hand with parties losing their composure and sometimes speaking out of tone and substance. There are offers that simply cannot be accepted by parties as they simply don’t match their interests, and even if they do, these offers do not stand up to the alternatives elsewhere. Recap the moments that got out of hand and how they were steered back to constructive conversations. If rude or hateful language was used, remind them that they let it go and matured to a more constructive vocabulary. Bad behavior must be accentuated for all-round disciplining and not passed on a sly remark attacking either party. (For e.g., “We lost conversing time while interrupting each constantly and speaking out of turn. It’s sometimes difficult to hear the things we feel are incorrect, but reacting to them without hearing the other person out robbed us some priceless information.” A workplace mediation didn’t reach a consensual deal, and the mediator mentioned that the despite the employer’s best efforts the employee couldn’t agree to the deal as another company was offering him a better offer. At this stage, the employer interrupted the mediator and apologized to the employee for calling her a “lazy, stubborn prick” in front of her colleagues at work. Stunned by the apology, the employee acknowledged the regret and said she would like to try the mediation again some other time.
Inviting feedback is such a powerful tool at the end of an imperfect mediation. We can simply ask the parties to evaluate the session from their perspective – what worked and what did not, and what they would have preferred done differently. This conversation can be done in joint conferences or in private sessions, contingent to the mood in the room. If the meeting has reached a crescendo of insults and allegations, we don’t want to throw the ring open for the knock-out punch. One aspect that arouses my curiosity is about their understanding of the conflicting issue now, in comparison to their thoughts yesterday – has anything changed? Have they received clarity on facts and situations? Do they look at the person with a different perspective? Their feedback here will be the most honest as the memory is fresh and uncontaminated from external influences. This also gives mediators a clue as to whether the parties might consider another session in the future. For many parties, this might have been their first taste of mediation and even if they don’t return to resolve this particular dispute, they could consider it as an option for matters in the future. A couple heading for divorce participated in two hostile mediation sessions and got to absolutely no common grounds. In the end, the husband confided in the mediator that the problem was not the process or himself, but his wife. Amusingly, the wife also had very kind words for the process, but claimed her husband was the devil himself. Five months later, the mediator received a phone call from a prospective client inquiring about the mediation service. The caller mentioned he received the recommendation from the same couple, who, by the way, were engaged in a full-blown court battle. On a side note, getting feedback can also assist those mediators who engage in a reflective self-assessment.
Settlement agreements are stalled for many reasons – the lack of authority to make decisions, absolute disagreement on the presentation of facts of the case, parties presenting themselves cold and non-participative, parties without legal counsel feeling under-represented at the mediation. Once the parties do agree on giving mediation another shot and set a date, time and venue for the next conference, it is essential to send them home with a little homework to make amends for the time and efforts that could have yielded better results. Giving specific homework dismisses the excuse of an unprepared party. It’s important the parties come with the right authority to settle and if they don’t hold power of attorney, they must at least have a direct telephone line with the authorities concerned, to make decisions at the table. If there are documents which can verify the facts of the case, these must be brought to the mediation the next time. Giving parties homework is also a method of making sure that the mediation process is not abused to avert the limitation period for litigation procedures. Our integrity as mediators is reflected in ethical practice, and we must not tolerate mediation being used as a camping ground for dishonest users. Most importantly, the practice of tasking the parties with prep work also gives you a head start into the next session and indirectly presets the agenda for dialogue.
Listed above are a few check-boxes I like to cross in my practice. Mediators across the world would use their own version of a ‘mediator’s touchdown’ to conclude imperfect mediations, just like every captain of an aircraft would have to use his or her own instinct and skill in making emergency landings. As Captain Chesley “Sully” Sullenberger said (quoted in the movie “Sully”) to his first-officer in the cockpit, before the controversial Hudson River landing, “It’s all about the timing. You can accomplish anything if you’re never in a hurry”.
(Click here to read Part 1 and Part 2 of this 3-Part Series) 4.4.3 Stages of CODR Procedure A CODR procedure consists normally of four stages, namely, (1) filling a...By Daniel Dimov, Jaap Van den Herik
IndisputablyFrom TFOI Kristen Blankley: COVID-19 has created additional need for legal services in many areas, including housing, consumer law, employment law, probate, family law, domestic violence advocacy, criminal law, among...By John Lande