In this piece I try to cover a topic in two consecutive blog posts which I would not normally attempt but for an important discussion at the recent LEADR conference in Wellington and continued across the Pacific a couple of weeks later at the IAM Portland gathering of commercial mediators.
There was much talk at our gatherings of the grim reality of what we commercial mediators do – as opposed to what we teach in mediation school and what we read as part of our continuing skill development (rehearsing in poetry, but practising in prose ).
That discussion in part was prompted by a presentation by David Hoffman in Wellington where he explored the boundaries and terrain of ADR practice. His think piece on this topic will be in the fall edition of ABA’s Dispute Resolution Magazine.
David talked of adversarial mediation where parties have no prior relationship and few joint interests other than the reducing transaction costs of getting to trial — insurance cases being the obvious example.
In such cases, he observed, if the parties find themselves at impasse they often look to the mediator to be more like a judge or arbitrator and expect him or her to evaluate the likely outcome at trial. And in my experience the uninformed sometimes going as far as requesting a med/arb process, upon which I have posted before.
And for many of us the reality is that much of our work is transactional — transactional in the sense that the currency of the mediation is money and there are no real shared interests between the parties to be found, beyond identifying the savings of costs and an artificial calculation of the risks should they proceed to trial.
And I suspect many of us struggle with us — we struggle with the parties’ positional negotiation style in such cases and with the notion that we are unable to identify shared interests beyond the above.
This reality flies in the face of all that we have learned and most of what we read.
And we resist it.
It’s like Mediators are from Mars, Parties are from Pluto. We mediators try to promote interest based bargaining in the positional real world of money negotiation.
And because we resist it, our consumers – especially lawyers – block attempts to reframe money disputes into something they are not and will never ever be – an elegant interest based/problem-solving exercise.
They are, and will remain, traditional negotiation dances where proposal begets counter proposal begets proposal – often endlessly.
Until a few years ago I wrestled with this conflict. I felt that somehow great mediators would have found those interests within my mediations and would have found the mutual gain that was on offer, no matter what kind of mediation it was.
I was wrong. Real wrong.
Oftentimes, those interests are not there in the knockabout world of commercial dispute resolution and it is only about savings and risk.
As Andy Little says in his wonderful book Making Money Talk our role in money mediations is more about facilitating getting to best numbers – quickly.
And we should do that by;
First, facilitating the flow of information
That’s it – that’s Andy’s take on our role in traditional money disputes.
Doesn’t mean we are not intelligently facilitative – in my view the parties will punish you if you stray from that (purchasing habits of sophisticated mediation services consumers).
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