From the Blog of Phyllis G. Pollack.
It always intrigues me how I learn about something and then an event happens that brings that new learning sharply into focus.
The other day I had a conversation with plaintiff’s counsel about setting up a mediation. He wanted to set up another mediation with me but his client – an experienced litigator – disagreed. The client figured because he had attended so many mediations and/or settled so many cases as an attorney advocating for his clients, he and his attorney could meet directly with the defendants and their counsel and settle his own case. In sum, the attorney figured: what did he need a mediator for; he could settle the case, himself.
What a loaded question! And the answer is equally loaded. Last week, while at the ABA Section of Dispute Resolution Conference in New York, I attended a session entitled “The Myth of Mediator as Settlement Broker” presented by Douglas E. Noll, (Noll Associates, Clovis, CA) and Neil Carmichael, (American Arbitration Association, Charlotte, N.C.). They quickly disimbued those in the audience of the notion that the sole and only role of a mediator is to settle cases. Rather, they explained that a mediator has at least eight roles: convener, manager of emotions, emphasizer, de-escalator, recounciler of justice, coach, assistant to decision making, and problem solver. (I thank these kind gentlemen for what follows.)
As convener, it is the job of the mediator to get the parties to agree initially to meet and to give them hope that the matter can be and will be resolved through such a meeting. Very quickly, the mediator, as a convener, must sell the process of mediation, (that is, convince the parties that it is a process that works), gain their trust and help the parties overcome their initial fears and anxieties about even meeting. Certainly . . not an easy task.
Then, in the initial stages of the mediation, the mediator must manage the emotions of the parties: when to let them vent, when to change the conversation, when to impose ground rules, and otherwise be ever on the lookout for hostility and flare-ups and conduct pre-emptive strikes to prevent such implosions, and to prevent the mediation process from coming to a grinding halt.
At the same time, the mediator must de-escalate the process by showing empathy and understanding, and by getting the parties to go “below the line” to understand what are their true needs and interests. The mediator must listen, truly listen to the parties, and convince (cajole?) them to change their perspectives so that common ground can be found and a solution reached.
While doing all of the above, the mediator must also help each party reconcile the seeming injustice of the whole situation. “But, it’s not fair”!, each party will argue and then proceed to explain why! The mediator must help the party get past this point of “unfairness”, past this subjective perception, to a more pragmatic approach and to a place where different options for possible resolution become acceptable and feasible.
To do this, the mediator also plays coach and assists in decision making. Many times, a party will view the mediator as an experienced negotiator or simply as just one who is more experienced and so ask for advice and coaching. Walking a fine line, the mediator coaches and assists, yet must be careful not to practice law, especially if she is not admitted to any state’s bar entitling her to do so. The fine line is nothing less than a very careful walk on a very thin tight rope.
Finally, the mediator must help the parties “problem-solve”, or help them solve the dispute and reach a resolution. To do this, the mediator either “thinks outside the box” to generate options on her own and/or helps the parties do so, hoping that such creativity will lead to an innovative solution that each party can live with, accept and find closure!
And then comes the drafting of the settlement agreement which can be a whole new mediation in and of itself, in which the mediator again plays each of the eight above discussed roles. If the mediator accomplishes such multiple roles simultaneously (aka a split personality), the parties sign an agreement and the matter is resolved once and for all!
Whew! What a lot of work. . . for “just” being a mediator! I think I need a “rest” break!
. . . Just something to think about!
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