In most civil mediations in the United States the number of parties is relatively limited. Not including such types of mediation as “Land Use” or “Environmental” most mediations have only 2 or 3 parties. In such an environment, the parties and the attorneys are intimately involved with the process of the mediation and the settlement which hopefully results. Over the last 4 years, the author has observed and received direct feedback from hundreds of mediations and hundreds of parties thereof, in which the process ended in impasse.
Frequently the unsuccessful mediation parties have told the author that the process was very “legalistic” and they were not able to fully follow along. They were not confident in the final recommendations of their attorney, because they could not follow the technical legal nature of the process. So reluctantly, the party does not agree to settle the case as presented to him by his or her attorney. This article attempts to incisively examine why certain processes might fail because of an over emphasis on the legal aspects of the case.
Needs Oriented Mediation
For about the last 10 years or more, the mediation industry has focused on “Needs Oriented Solution Development.” The question when this concept is discussed often becomes ‘Who develops the needs?’ Once the face to face mediation session starts the mediator very much influences who develops these needs. If a mediator is focusing on the legal issues helping the parties’ attorneys discuss and evaluate their case, the party is often unable to fully internalize the intricacies of these conversations.
It appears that this process, in essence, ‘leaves the parties themselves out of the loop” in determining the resolution. Many parties have expressed a feeling of “dumbfounded-ness” as the issues in the mediation swirled around them, without their ability to constructively contribute. In addition, they have expressed feelings of “non-involvement, disenfranchisement and uselessness and even emptiness” in retrospectively relating the experience.
The Value Of The Attorney Should Never Be Diminished Or Dismissed
No one should ever diminish the importance of the attorney in these mediations. In many, many cases, the attorney is a crucial element in the settlement of any mediation. To illustrate this importance the old maxim “he who represents himself is a fool” should be invoked, in increasing magnitude with respect to the importance of the issue or issues being mediated.
The parties are personally involved in the conflict. The attorneys are not personally involved in this manner. Personal involvement usually implies emotional involvement. Without the confidentially protected advice that an attorney provides to his or her client, the client is dangerously in jeopardy of allowing emotionality to let them either agree to something that is not fully in their best interest; or vice versa, refuse to sign an agreement that is in their best interest.
In so many ways, a pro se mediation is a mediator’s nightmare. The entire process is riddled with the mediator’s efforts to make sure he does not do what is not allowed for a mediator. It is common for a pro se mediation to start out with the party saying to the mediator, “What should I ask for or What can I ask for?” The mediator says he cannot tell them that, but he can help them develop a list of what their needs are at this time. Then, the party is asking the mediator next, “Is it a good settlement and Should I take it?” Again the mediator is saying “I cannot characterize the settlement offer and I cannot advise you with respect to your decision as to whether it is ‘acceptable’ to you.” It is incumbent on mediators to recognize that in a mediation, the attorney is often their best resource to achieving “mutually acceptable resolution.”
The premise of this paper is that “The attorney is virtually indispensable and the legal issues should be de-emphasized.” This premise may appear at first ironic, oxymoronic and paradoxical. On further examination though, it is noted that the two statements are not in the least mutually exclusive.
The indispensability of the attorney is to help the client understand in every necessary manner what he is agreeing to and to give advice all the way through the process, including directly interacting with the mediator. These actions are totally separate from the concept of the legal issues driving the march toward settlement.
The Proposed Solution
Since judges and juries are notoriously unpredictable, arguing the legal points of the case in mediation may be of very limited significance and/or value. But what surely is significant in mediation is the “needs, perceptions and feelings” of the parties involved in the conflict. The fact is that if these “needs, perceptions and feelings” are not dealt with and the mediation becomes a legal negotiation, there is greater risk that a settlement will not result.
One solution which would achieve this result would be for attorneys representing parties and for Mediators in mediations to be more of a “counselor” and less of a “lawyer;” and for the mediator, more of a “facilitator” and less of an “evaluator.” If attorneys and mediators could adopt this type of approach to mediation, the overall settlement rate should increase. The process of mediation depends above all else on the “self-determination of the parties.” Only the parties can say if an agreement is “acceptable to them.” Given those premises, this article proposes that attorneys, parties and mediators focus on the “needs, perceptions and feelings” to resolve the conflict, rather than any legal probabilities of winning or losing in a future courtroom process.
This month's ABA Magazine suggests that an ADR practice might provide attorneys with a recession-proof (or downturn-friendly) practice: On ABAJournal.com, readers were asked to name some of the lesser-mentioned practices...By Victoria Pynchon