A section of my state bar association recently sent a survey to mediators in the state. The section was eliciting statements containing a summary of each mediator’s philosophy of mediation, including procedures and preferences as to how attorneys and their clients should prepare for and conduct themselves throughout the mediation process as well as what training and experiences a mediator has that a litigator may not. The survey responses were then to be used in a seminar for attorneys in that section’s practice area. Filling out the survey allowed me the opportunity to step back for a moment and ponder my own philosophies of mediation regarding how the attorney and client should prepare for and participate in the process. It also allowed me to think about the many assets mediators have that litigators may not. I now pose these same question here and welcome any response as you reassess your philosophies and the profession of dispute resolution.
I. What unique experience or training does an effective mediator have that a litigator may not?
The simple answer is that it depends on the mediator. Some mediators are highly trained and educated with advanced degrees in law, dispute resolution, psychology or other social sciences, while others are experienced in a certain field such as real estate, construction or counseling. Some mediators have both. When looking for an answer to this question it is important to look at the mediators credentials and reputation for the answer. Professional mediator and scholar L. Randolph Lowry put it well when he said mediation is a “distinct field with its own set of values and practice. It is interesting to note that we weigh the substantial investment in education and experience necessary to become a counselor, teacher, lawyer or other professional, but assume that becoming a successful mediator is simply a matter of taking a weekend training course, printing business cards and declaring ourselves ready for work. Often those who want to mediate believe that success in one field automatically leads to success in the other; it simply does not.” Therefore, a mediator that has seriously invested in becoming a great mediator through education, training and experience brings to the table certain skills, tactics and techniques particular to the distinct field of mediation that a litigator may not. These might include the ability to traverse different realities, serve as the agent of reality, understand the predictability and process of negotiation, understand different negotiation barriers and how to break through them, deal with different issues from culture to emotions, understand the psychology of negotiation enabling him or her to strategically bring the parties to settlement. In sum, by employing his or her time tested techniques, skills and tactics, an educated and experienced mediator has the ability to get in synch with the parties and assist them to reach an effective resolution in ways a litigator may not.
II. What is your philosophy of mediation (what it is, what it is not; how can/should/must mediation work?)
Simply put, mediation is negotiation facilitated by a third party. Many times the parties to a dispute, including their counsel, become so invested in the dispute that it spirals downward, sometimes out of control. A third party mediator is employed to break the downward spirals and destructive patterns of communication by identifying the issues and negotiating through them to resolution. A mediator can do this by employing the necessary tactics, techniques and skills with the trust of the parties. While an effective mediator must be a great listener, empathizer and communicator he or she must be careful not to cross the line into therapy. It is also important for a mediator to understand the legal issues and merits of each mediation in order to discuss them, but he or she should not act as the arbiter of such issues. The bottom line goal of the mediator is to get in synch with the parties and effectuate a settlement which they have fashioned and approved. III. What process do you follow in conducting mediation conferences?
I break the mediation into five stages: 1) Convening; 2) Opening; 3) Communication; 4) Negotiation; and 5) Closing. I do not move from one stage to the next until the previous stage is completed, doing so could jeopardize the mediation. Convening is getting the parties to an agreed upon location at an agreed upon time for an agreed upon amount. Once the parties are at the table we move into the Opening stage where I give my opening statements and allow each party the opportunity to educate me on their case and to be heard uninterrupted. It is the parties time to state their case and set expectations. Essentially it is their day in court and it helps me and the other side get a better grasp of the issues and the case. Once the parties give their openings I move into the Communication stage where we expound on what was set out in the Opening by clarifying the issues and discussing them. Once everything is identified, clarified and discussed we move into the Negotiation phase. It is here that the majority of time is spent and the various tactics and techniques are employed in order to reach resolution. This is either done in joint session or caucus, usually both. The final stage is the Closing where an agreement is drafted and finalized or agreed to in principle by the parties.
IV. How must attorneys and their clients 1) prepare for and 2) conduct themselves throughout the mediation process?
I expect my clients to prepare for mediation in the same way they would for court. I expect a short brief or statement of the issues prior to the mediation. This achieves two objectives. First, it educates me on the case and allows me to be prepared for the mediation. Second, it enables the parties to think about their case and articulate the issues and prepare accordingly. During the mediation I expect the parties to work towards resolution by thinking outside the box and be honest with me about how they feel and what they want. Trust in the mediator and the process goes a long way towards resolution.
a. What expectations do you have of attorneys prior to, during, and after the mediation conference? I expect them to prepare a valuable pre-mediation brief. I expect attorneys to explain mediation thoroughly to their clients, not just about what the process is, but what it is they want through the process. This might include what they want in a perfect world, what they want if they have to give up their bottom line and what they would feel comfortable with leaving my office at the end of the day. Of course I do not want to know all of this up front, but I want the attorney and client to be on the same page so they can work together as the mediation progresses. Each mediation has similarities, but they are all different in their own way. Being prepared for the different twists and turns a mediation can bring goes a long way towards reaching the desired end result of resolution.
b. What expectations do you have of each party prior to, during, and after the mediation conference? Be prepared, be realistic and open to considering different options. As hard as it may be don’t come into mediation with preconceived notions of fairness. Know what you want and what you can or will give up to get it. Assess the reality of the situation, the big picture and act accordingly.
After concluding my comments the one thing I realized was that if mediation is going to proceed to grow and be a useful tool in our society, we as mediators need to continually progress in our philosophies of mediation. Knowledge is analogous to an object thrown in the air, it is either rising or falling, it never stagnates or plateaus in one place. As for myself, over extended periods of time the knowledge that I gain is either reaffirmed or forgotten, it rarely stagnates. As mediators we have sought out knowledge and learned various skills that guide us in our quest to assist parties reach resolution. If we are not continually honing our skills, reconsidering our philosophies, considering other philosophies and testing new techniques and tactics then we will decay as individual mediators and as a profession.
There has been an influx of mediation training courses over the past few years that continually pumps out more and more mediators. I do not have a problem with this so long as they continue to grow and seek out further knowledge if they are going to pursue a career as a mediator. Not doing so could lead to an underperforming mediator, which leads to dissatisfied clients, which results in a negative reflection of the mediation profession and ultimately its demise.
I believe this standard of continual progression applies to every mediator, including the newly trained mediator, the person who has advanced degrees and the mediator with the degrees, years of experience and vast amounts of knowledge. Great examples of the ever progressing mediator include Jeffrey Krivis, Robert Benjamin, Randy Lowry, John Helie and Jim Melamed. These people are always reassessing mediation and its many intricacies. They are always looking for ways to expand mediation and reach out to those in need of its benefits. If the vast majority of people trained in mediation share the same work ethic, passion and desire for its growth as these individuals then mediation will continue to grow and be desired as the primary way to resolve conflict in our society. It is a challenge to myself and all alike that we continue to assess our own philosophies and persist in growing and expanding as mediators.
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