Mediation is changing law
practice. It is the cheapest, lowest risk,
and most under-utilized form of alternative
dispute resolution. And the demand for it is
rapidly growing.
Public pressure for making the legal
system more accessible is responsible for
some of the increased demand. Hard-pressed
businesses looking for ways to control their
legal costs are also responsible for
mediation’s rise in popularity. Corporate
counsel increasingly choose outside lawyers
on the basis of the outsider’s commitment to
ADR, according to a recent article.
You cannot ignore this impending change — and it makes good sense to prepare for it
sooner, rather than later. There are three
good reasons for introducing mediation into
one’s practice immediately.
PREPARING FOR THE INEVITABLE
First, you may as well make a virtue of
necessity. Exploration of ADR alternatives
is likely to be legislated for every civil
dispute. California’s State Bar Task Force
on Access to Justice has proposed legislation
which contemplates having the parties in
every civil action meet to choose appropriate
ADR processes, or having courts require ADR
assessment conferences. A legislative
proposal embodying much of the state bar
position (AB 3011) failed in this legislative
session, but the issue will be raised again.
It is cheaper to require ADR than to build
new courts, and the idea of “privatization”
has been popular for some time.
Additionally, the state bar may decide that
lawyers have an ethical obligation to explore
alternatives to litigation with their
clients. You can learn new techniques now
and develop a reputation for skilled, cost-efficient resolution of client problems, or
wait until ADR is mandated by statute.
BUILDING ADR SKILLS
Second, lawyers are dispute resolvers. We counsel
clients on avoiding potential disputes, manage and resolve
small disputes before they can grow, negotiate resolutions
to disputes before and after filing suit, and litigate to
resolve the most intractable disputes. All of this dispute
resolution requires skillful lawyering, learned in law
school and practice.
Mediation is another form of dispute resolution. Using
it requires skillful lawyering, new knowledge, and real-world practice. But using mediation effectively isn’t part
of what most lawyers learned in school, and few have had
much practice at it.
Even if an attorney is regularly engaged in settlement
conferences, this only scratches the surface of mediation.
Mediation is a variety of processes, which can be
employed at different times in the progress of a dispute.
From pre-filing “facilitated good faith bargaining,” to
post-filing “managed discovery,” to the wide variety of
post-discovery mediation alternatives, mediation offers many
options to traditional litigation. Certain mediation
processes are most likely to be effective for particular
disputes, or at specific times in a dispute. Different
processes require different approaches, both by the mediator
and lawyer. As a client’s dispute resolver, a lawyer helps
determine whether a dispute is appropriate for mediation,
when mediation might be most effective, and what type of
mediator is needed. The lawyer must prepare a client for
mediation and help the mediator bring the client’s dispute
to a rapid, successful resolution. It is a truism among
mediators that nothing kills the prospects for resolution
more surely than a lawyer who doesn’t understand the
process.
BUILDING A PRACTICE
Third, these are tough economic times for lawyers.
Success in a competitive environment requires mastering a
variety of techniques to help clients achieve a cost-effective resolution of their disputes. A lawyer who is
adept at skillful, cost-effective dispute resolution may be
assured of client loyalty. There are, of course, clients who
only want an “attack” lawyer. Psychological limitations
narrow the options for dispute resolution which may be
offered such clients.
You may be concerned about the cost of client loyalty.
A common belief is that mediation relies upon avoiding legal
fees to achieve a settlement. That is, the parties figure
out how much it will cost them to continue litigating and
use those dollars to bring their “bottom lines” into a range
where compromise is possible. The only one who loses —
according to the theory — is the lawyer who expected to
bill for further work. Cynics cite this as a reason lawyers
will only talk about mediation, or pretend to support it to
avoid other proposals for reforming the legal system. But
this cynical view is inaccurate because it relies
exclusively upon the settlement conference model of
mediation, and misunderstands case dynamics. An example of
a non-settlement conference model may be helpful
At the early stages of a dispute, mediation can help
develop alternatives to a “zero sum” game. A mediator can
help the parties identify their real interests. Then, the
parties may discover that there is a deal to be made, a
contract to be written, property to be transferred. All of
these generally require legal assistance. What might have
been a dispute in which a suit was filed and eventually
dismissed, becomes an opportunity for the parties. The
success of this form of mediation does not rely on avoided
legal fees providing a fund for settlement.
TRANSACTION COSTS
But there are cases in which avoiding transaction costs
provides the impetus for settlement. Transaction costs,
however, are more than just the legal fees that will be
expended if a dispute continues. Transaction costs include
the time clients devote to the dispute, the emotional price
paid by the parties for continuing the dispute, and foregone
opportunities for more profitable endeavors because of the
mental energy devoted to the dispute.
If these transaction costs — exclusive of legal fees — become too high for one or both parties, the case will
settle. Where offers of compromise have been made, the
transaction costs get weighed against the additional dollars
thought to be available. Again, if the price in transaction
costs (exclusive of legal fees) of the last “x” dollars is
too high, the case settles. In fact, this may be why so few
cases are actually litigated.
If the vast majority of cases are going to settle
anyway, then the idea that the “fund for settlement” comes
out of legal fees is wrong. The fees that parties focus on
are unlikely to be incurred. While a good mediator will
certainly direct the parties to look at these “potential
savings,” you should not misunderstand the reality. Most
cases settle: this one may or may not. There may be very
few additional legal dollars expended before the dispute is
resolved, although the additional transaction costs can
still be quite high.
TYPES OF MEDIATION
Before you can introduce mediation into your practice,
however, you need to consider some basic differences in
types of mediation, their uses, and your role as your
client’s dispute resolver in the conduct of a mediation.
There are no rigid categories in mediation. Mediators try
to be flexible in anticipating and meeting the needs of the
parties to do what will work in resolving a particular
dispute. But we can identify two broad categories of
approach that are sufficiently different to merit an initial
choice and require different lawyer approaches: Information
Centered Mediation and Process Centered Mediation.
Information Centered Mediation (ICM). This type of
mediation relies upon the mediator possessing superior
information gained through formal study, experience, or both.
For instance, a retired judge may have decided 100 personal
injury cases. That experience, plus the judge’s perceived
neutrality, permit the judge to say — implicitly — “I can
predict, with a relatively high degree of accuracy and within a
fairly narrow range, what the award would be in this case if it
goes to trial.” Similarly, a litigator who has tried 200
personal injury cases may make relatively high probability
predictions about the outcome of a case. In areas where the law
is changing, the leading academic expert in that area may make
highly informed predictions about where the law is likely to go
in a specific jurisdiction. Alternatively, the academic expert
may have well informed views on the likely success of each
party’s theory of the case, which could lead them to reassess
their own views of the probability of success. Finally, where
the dispute turns on a technical matter (for example, is this
emission reduction valve essentially the same as the patented
one), the opinion of a neutral technical expert may help the
parties reach a settlement.
Choosing a Mediator. In each instance, the choice of a
mediator is dictated by perceived expertise. The expertise may
be in legal processes, as with the retired judge or experienced
litigator, or in a specific subject matter area, as with the
academic or technical expert. ICM relies upon perceived stature
in the field to help resolve a dispute. The nature of your
dispute determines the degree of stature you need — and are
willing to pay for. A business dispute which turns on arcane
matters of international law may justify engaging the leading
expert at the United Nations, while a dispute about a fast food
franchise might well be mediated by a local lawyer with
significant franchise experience.
How ICM Works. The information centered mediation
process involves the parties assenting explicitly or implicitly
to the judgment of the mediator. The mediator begins with the
stature gained through experience and training. This initial
stature is increased by the parties having chosen that mediator
for their dispute. That is, each side has an investment in the
belief that it has chosen exactly the right person. When the
mediator first enters the dispute, it is with an aura of
impartiality and expertise. The mediator enhances this aura by
careful listening, judicious questioning and skillful exploration
of the nuances of each side’s position.
There comes a point, however, when the parties want to
know what the mediator thinks is the likely outcome and
value of the dispute. That is a critical point in ICM.
While delivering an opinion can be delayed, it eventually is
given. How the mediator makes an opinion known may affect
its acceptability. Another second critical point comes when
the mediator defends the opinion. In most cases, both sides
are less than delighted with the opinion, although there are
cases in which one side is right and the other wrong. The
mediator must defend the position and gain substantial
acceptance of it without alienating either party. In that
process, the mediator may alter an opinion, within a limited
range, as a result of additional information, or previously
unknown arguments. The mediator often engages in the sort
of “shuttle diplomacy” that is the hallmark of ICM. This
process works if there is substantial acceptance of the
mediator’s evaluation; it must be the center around which
the parties explore options for settlement.
SUCCESS FACTORS
Typical Uses of ICM. ICM is most effective when bothsides are well-informed about the facts of the case, the
continuing transaction costs are perceived as high, and either
the dispute is a “zero sum game,” or the legal outcomes are
extremely limited. Personal injury and medical malpractice
cases, contract disputes over performance, and marital
dissolutions are especially amenable to ICM. It may sound odd to
include divorce mediation under ICM, since many lawyers
mistakenly confuse it with some sort of conciliation process.
But divorce mediation– as it is practiced by some of the most
proficient lawyers — involves neutral expertise. Most divorcing
couples are only dimly aware of the statutes, cases, and
extensive judicial guidelines which are highly outcome
determinative in their dispute. Educating the parties in the
rules, option, and likely outcomes can lead them to a resolution
of their dispute, at low transaction cost. While the mediator
may make some effort at reducing the rancor between the parties,
it is secondary to the process of reaching agreement on the terms
of the dissolution. And this reduction in rancor is not
necessarily different from the efforts mediators make in other
settings to bring sufficient civility to the process so that it
can move toward resolution.
ICM is most effective relatively late in disputes, when
the parties have a thorough understanding of the facts.
They may have taken earlier positions based upon what they
hoped the facts would be, but have not modified those
positions because they feared it would be taken as a sign of
negotiating weakness. Conversely, ICM is unlikely to be
effective when there are unknown facts which could
significantly affect the evaluation of the outcome of the
dispute. Many attempts at “Early Neutral Evaluation”
founder because the evaluation is attempted too early. ICM
is least effective when there is a need to re-define the
dispute or expand the settlement options perceived by the
parties. While it is possible to resolve a well-advanced
dispute through the creation of new options, that is not the
primary focus of ICM.
KNOWLEDGE OF DISPUTE PROCESS
Process Centered Mediation (PCM). The PCM method
relies on the mediator’s expertise in the process of disputation
and skill at achieving resolution of disputes. The mediator does
not claim expertise in the subject matter of the dispute, or the
ability to predict the litigated outcome of the dispute. Rather,
the mediator claims knowledge of how disputes work and the
ability to move them toward resolution. The mediator can help
the parties focus on their real interests, expand their options,
and resolve their dispute on terms not previously considered.
The mediator can help them discover non-adversarial procedures
for achieving their ends, help them agree upon a specific
alternative to litigation, or help them move more expeditiously
to inevitable litigation. The mediator relies upon a combination
of perceived stature, neutrality, and specific techniques for
resolving disputes.
Choosing A Mediator. While lawyers are usually
familiar with “rent-a-judge” services and colleagues who have
participated in court supervised early settlement programs, very
few are knowledgeable about PCM mediators. The knowledge and
skills employed by PCM mediators have usually been gained through
resolving labor-management, community, inter-corporate,
insurance, or environmental disputes. Information about
mediators is available from some bar associations which have
begun to compile lists. Also, the American Arbitration
Association provides extensive screened lists of skilled
mediators. The Center for Public Resources maintains a list of
former diplomats, government officials and other well-known
public figures who are willing to mediate.
The selected mediator must be capable of quickly
understanding an explanation of the matter in dispute. In
addition, the mediator’s neutrality is, at times, the critical
element in resolving a dispute.
How PCM Works. PCM mediators often rely upon three
specific “process” techniques to move the parties toward
resolution of their dispute: active listening, identifying
interests, and re-framing issues. While there are many other
techniques, these may help to illustrate the difference between
relying on prediction (ICM) and process (PCM). Active listening
is a technique for both verifying the information being received
from disputants and convincing them that the mediator understands
the dispute. The mediator repeatedly re-states, in his or her
own words, what the disputant has said. Each time the disputant
is asked to confirm the accuracy of the re-statement.
Discrepancies are explored as an aid to identifying the interests
of the disputant.
The actual interests of the disputants may be quite
different from their stated interests, and the mediator
attempts to help the parties identify their real interests.
The stated interest may be huge amounts of money and public
humiliation of the other disputant, but the real interest
may be in reasonable compensation for time expended in some
endeavor and the opportunity to end an unproductive business
relationship.
The classic example of stated interests creating a
dispute when real interests are not in conflict is the two
cooks arguing over a single orange. Both have claims to it
based on their relative status and the importance of what
they are preparing. Both are convinced they are more
deserving of the orange. But one cook wants orange juice
for orange ice and the other orange rind for cake icing. In
order to resolve this dispute a mediator first helps the
parties discover their real (orange juice and orange rind)
as opposed to their stated (the orange) needs. Then the
mediator helps re-frame the dispute. Instead of a dispute
over who gets the orange, the dispute can be re-framed into
“who gets the orange at what time.” If the second cook gets
the orange after the juice has been squeezed out, both can
satisfy their real interests.
There are other situations in which re-framing allows
the parties to resolve the dispute. What appeared to be
“zero-sum” disputes over compensation for serious personal
injuries were resolved — when interest rates were high —
by structured settlements. These represented a re-framing
of the dispute. Instead of a dispute about how much a
particular injury would bring from a jury, the dispute was
re-framed as “what income stream is necessary to replace the
economic loss caused by the injury?” With interest rates
high, there was an opportunity to meet the legitimate
economic needs of an injured plaintiff while bringing the
actual cost to the insurer within a range it could agree was
appropriate. PCM mediators help parties discover ways to
re-frame their dispute to bring about resolution.
Typical Uses of PCM. There are certain types of
disputes for which PCM is most effective, and certain times in
all disputes when PCM can be advantageous. PCM is most effective
in disputes involving workplace rights and obligations,
continuation or dissolution of business relationships, and
individual or group relationships. It is most advantageous prior
to initiating litigation, before and during discovery, and after
discovery when litigation has stalled.
Disputes over workplace discrimination because of age,
gender, or other bias are particularly amenable to PCM. The
essential dispute is often about individual dignity, respect
from peers, and freedom from a hostile environment. Before
litigation starts PCM can be most effective because it gives
the employee and employer the opportunity to correct a
problem and continue their relationship. For instance,
claims of sexual harassment can be dealt with in a positive
way that changes workplace behavior without stigmatizing the
employee who brought the claim. An age discrimination
claim, even after suit has been filed, may be more about
dignity than money. A settlement that recognizes a former
employee’s value (perhaps through a paid consultant
relationship), may be perceived as more fair than a far
larger dollar award. In many lawsuits over workplace
relationships, money is simply the available surrogate for
lost respect, dignity, and self-esteem.
When business relationships go sour, there is often a
unique opportunity for PCM. The parties’ real interests
frequently cannot be satisfied through litigation, since the
legal solution may be dissolution, resulting in the
destruction of a productive enterprise or its forced sale.
Sometimes intelligent business people neither recognize nor
act to further their economic self-interest because they
have become deeply involved in a dispute. A PCM mediator
can help them re-discover their real interests and uncover
options for mutually achieving those interests. Even if the
solution to their dispute is to dissolve the enterprise, a
PCM mediator can often help the parties dissolve the
enterprise in a way that optimizes the advantages to both.
Finally, disputes that involve neighbors, voluntary
associations, and even the relationship between governmental
agencies and individuals can often be resolved through PCM
mediation. In many instances, low cost mediation services
may be available through a community based mediation center.
The key to these disputes is that the parties must continue
to interact after the dispute is finally resolved. The
process of compromising is often more important than the
specific compromise reached. Even with governmental
agencies, the cost of policing an agreement that is not
voluntarily achieved may outweigh the benefits of the
agreement. Consequently, a governmental agency may be
willing to engage in a PCM mediation.
THE LAWYER’S ROLE
To be effective, a lawyer must constantly remember that
the dispute belongs to the client. During mediation the
client makes decisions about the case. Sometimes these
decisions are at variance with legal advice, and sometimes
they are made while both the lawyer and a third party are
present. This apparent loss of control makes some lawyers
uncomfortable, which is why they might choose ICM when PCM
would be more appropriate to that specific dispute.
Lawyers feel more comfortable with ICM because it is
similar to a settlement conference. While the lawyer’s
authority is derived from the client, it is the lawyer who
appears to be in charge of the dispute. In most instances,
the lawyer advocates the client’s position while the client
remains silent. In PCM the client is more explicitly in
charge of the dispute. The mediator needs to hear most
things from the client, not the lawyer, in order to decide
how best to move the dispute toward resolution. The client
usually seeks advice from the lawyer, and relies upon the
lawyer to explain the legal implications of a particular
action, but the client is clearly in charge of his or her
dispute. Being in charge may also make certain clients
uncomfortable. Consequently, you need to anticipate and
eliminate some of your client’s sources of discomfort.
While there are some differences in preparing for,
conducting, and terminating ICM and PCM mediations, they
both require significant client participation. And this
participation must begin with selecting the mediator. The
client must choose the mediator. The lawyer can gather
information about the mediator and advise the client, but
the client must make the choice. The reason for this is
obvious. The client must have an intellectual and emotional
investment in the mediator. The client must begin with a
conviction that this is the person who can resolve the
dispute because it is this conviction, in part, which gives
the mediator the status necessary to attempt to resolve the
dispute.
Preparing for Mediation
Both ICM and PCM mediation require significant
preparation, both for the case and client. As of this
writing, it appears that Senate bill 711, which re-writes
California Evidence Code §1152.5 will become law. As a
consequence, in California, written confidentiality
agreements will no longer be necessary to protect statements
or documents introduced in mediation; such agreements may
still be necessary in other states. An ICM mediator may
require more formal written preparation. Some mediators may
ask you to prepare a short summary of the facts and current
legal posture of the case, before the mediation. It may be
sent to the mediator in advance, or provided at the
mediation session. Even if you have not specifically been
asked for a summary, it is a good idea to prepare one. At
the very least, it will re-familiarize you with the dispute,
so you can quickly inform the mediator about the basics of
the dispute at the beginning of the mediation. And you can
offer the written document to the mediator, as an aid to
remembering all of the key facts and issues.
Three aspects of this written document are important.
First, it should be brief, relating the major aspects of the
dispute but not going into the nuances. Second, it should
be neutral in tone, but not arrangement. If there are
disputed issues of fact admit there is a dispute and then
present a defensible version of the facts from your clients
point of view. You should not comment on the facts through
using adjectives, characterizations or obvious legalisms
such as “clearly.” Third, if the mediator may not be
familiar with key technical terms, give the mediator a
glossary. A good mediator will learn the terms immediately
and speak the language of the parties, in the hope of
building the parties’ confidence in the mediator’s ability
to resolve the dispute.
In PCM mediations a written document is not usually
requested. Frequently, a PCM mediator will ask the clients,
rather than the lawyers, to describe the dispute. This
enables the mediator to judge (by the order of presentation,
emphasis, emotional charge) what is most important to the
disputants. A written document, prepared by the lawyer, is
still useful as a checklist and glossary for the mediator.
By giving this document to the mediator, you can assure that
nothing is omitted or forgotten.
In both types of mediation it is critically important
to tell the client what process to expect, the role a client
will be asked to play, and the role the lawyer will play,
including the fact that the attorney may be asked for
confidential advice – and that the process can be stopped –
at any time. This is also a time when the lawyer may help
lay the groundwork for a successful mediation by asking what
the client really wants out of this dispute, not what he or
she feels “entitled to.” The client’s understanding that
this is a real opportunity to resolve the dispute may lead
to increased flexibility.
Participating in the Mediation
While the client must ultimately make the decisions
which will determine whether the mediation is successful,
the attorney has the power to make it fail by creating
enough doubt about the legal consequences of an action to
make the client too timid to settle or by making the
atmosphere so contentious that the process is subverted.
Here are three simple rules, addressed to lawyers,
which will insure that they give the mediation a chance to
work.
1. Let the mediator take charge of the process. Don’t
make the mediator arm-wrestle you for control. If you do,
you waste some of the initial good-will and stature the
mediator brings, without moving anyone toward settlement.
If you never permit the mediator to determine how and when
things occur, you are wasting the money you spent to buy the
mediator’s skill and expertise. You might as well go home.
2. Let the client be the center of the process. Allow
the mediator to speak directly to the client. Do not try to
interpret or explain every word your client speaks. Do not
try to protect your client from him or herself.
3. Don’t win an argument and lose an opportunity.
Often a mediator will appear to take the position advocated
by your opponent. (Indeed, sometimes it will be more than
just an appearance.) If you simply say you don’t agree, but
are willing to listen to what comes next, that is sufficient
to keep the process going. It is also an adequate signal to
the mediator that what follows may not be acceptable. If
you insist on proving your opponent wrong, you risk
awakening a fruitless debate and jeopardizing the mediation.
Here are some tips to increase the prospect of the
mediation to succeeding. Use the mediator. If your client
has unrealistic expectations, let the mediator deflate them.
If your client believes that “any fair person” would have to
view the facts in a certain way, let the mediator offer
another view. If your client is absolutely convinced of an
outcome, let the mediator undercut that conviction. The
mediator can float “trial balloons,” convey positions you
would want to disclaim, and hint at the range of acceptable
resolutions without revealing your position. In PCM, allow
the mediator to probe for real interests by proposing a
multi-level contingent resolution, without pointing out
every potential problem.
Terminating the Mediation
There are three possible outcomes to a mediation
session: resolution, further mediation, or termination. In
the first instance it is easy to know what to do: get
something written and signed. You need not draft the final
documents, but you should at least sign an agreement in
principle otherwise you risk new disputes caused by faulty
memory.
When it is necessary to adjourn a mediation for any
reason, set a date and time for resuming. Try to make it as
soon as possible. Mediations develop a “momentum of
agreement” that helps the parties move toward resolution.
The longer a second session is put off, the more likely that
momentum will be lost. Moreover, too long a time between
sessions may require the mediator to spend significant time
re-establishing a relationship of trust with the parties.
At other times, a lawyer is faced with deciding whether
it would in fact be useful to schedule a second session.
Ask the mediator. Each side provides the mediator with
information and impressions not available to the other side.
This information may have shown the mediator there is enough
potential movement to provide a good chance of ultimate
agreement. Alternatively, the mediator may want to make one
last effort to determine whether another session would be
fruitful. The mediator may not believe a second session
would be useful. If the mediator’s view disagrees with the
lawyer’s assessment, the best person to decide is the
client. If the client doesn’t want to continue the
mediation, it is unlikely to be successful.
In the third instance, a mediation session is
terminated because the parties are deadlocked and unwilling
to move. It is difficult for either party to know when a
mediation is truly deadlocked. When the mediator is moving
between separate caucuses, the mediator has a better grasp
of what progress is being made. A mediator may know of an
available concession but not communicate it for strategic
reasons. A mediator may detect movement where neither side
is aware that it has occurred. And good mediators have
developed an appreciation of the “calculus of despair.”
They know when keeping discouraged parties at work a bit
longer is likely to produce some needed movement.
It is important to give the mediator an opportunity to
continue even after you lose your conviction that the case
will be settled. Good mediators are unlikely to drag out
unpromising mediations. They want a reputation for settling
disputes — or at least knowing when further efforts are
futile. If they deliberately continue an unpromising
mediation, they risk their professional reputation.
CONCLUSION
As a lawyer you practice dispute resolution. Mediation
is simply another dispute resolution tool. This brief
introduction to alert you to its possibilities and make you
anxious to begin incorporating it into your practice.
If you want to learn more about mediation the American
Arbitration Association offers courses and seminars. In
addition, many bar associations now offer mediation courses
with MCLE credit.
The most important step you can take, however, is to
look at your cases and decide if mediation has the potential
for resolving any of them. If it does, review the mediation
option with your clients and let them decide. Whatever the
clients decide, by specifically considering mediation for
every case, you have incorporated mediation into your
practice. And that is to your credit.
This updated version is excerpted from the original.
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