New Hampshire Bar Journal
2005 Summer, 18.
Advocating for Understanding
New Hampshire Bar Journal Volume 46, No. 2, Pg. 18 Summer 2005 Advocating for Understanding Bar Journal Author - Attorney H. Scott Flegal
Why the Understanding-based Mediation Model Works
A recent Harvard Law School workshop focused on an "Understanding-based" mediation model.(fn2) The principal difference between an understanding-based model and most other mediation models is that understanding-based mediation is conducted largely without the use of individual or private caucuses.(fn3)
This article will argue that the non-caucus model of mediation is a better model for the resolution of disputes than models that employ private caucusing as a prominent part of the proceeding. The article will begin by defining mediation in the context of the Understanding-based model. The mechanics of a mediation conducted in the Understanding-based model will then be compared to and contrasted with the mechanics of a mediation where private caucusing is used. Next, the article will examine the mindset of the mediator in the context of the special demands placed on the mediator in the understanding-based model. Finally, the article will argue that this model provides a better framework for decision-making in the context of dispute resolution than traditional mediation models. This in turn gives the parties a better opportunity to obtain the best possible resolution of their dispute.
I. Defining "Mediation" in the Understanding-based Model
Mediation is by nature a flexible process that can have a number of different definitions.(fn4) Some define it simply as "assisted negotiation."(fn5) Robert H. Mnookin and Gary J. Friedman define mediation in the understanding-based model as "a voluntary process in which the parties make decisions together based on their understanding of their own views, each other's, and the reality they face."
This succinct, powerful definition is worth examining closely as it has important implications for mediation proceedings conducted in the understanding-based model.
As do most mediation models, the understanding-based model defines mediation as a "voluntary" process. Even in court-mandated mediations, mediators usually inform the parties that while they have been ordered to attend the mediation, they are free to leave the mediation at any time.(fn6) The voluntary nature of mediation helps lower the risk associated with the process and encourages the parties to participate actively in the mediation.
The Mnookin -Friedman definition also emphasizes that the parties, and not the mediator, make the decisions in the mediation. This notion - that the mediation belongs to the parties - is a central element of mediations conducted in the understanding-based mediation model.
The Mnookin -Friedman's definition of mediation also makes clear that during the mediation the parties will make the decisions together. Mediations conducted in the understanding-based model require the parties to adopt a problem-solving approach to the dispute. The mediation will only succeed if the parties work collectively with the mediator to try to resolve their dispute. The understanding-based model reinforces this principle by keeping the parties together in the same room throughout the mediation.
The Mnookin -Friedman's definition also stresses that understanding will be an essential part of the mediation proceeding. The mediator will work with the parties to help them understand. This understanding will entail not only an understanding of their own view of the dispute, but the view of the other party as well. The understanding-based model contemplates that the level of understanding required for the parties to obtain the best solution to their dispute can only be obtained if the parties are able to communicate with one another. Private caucusing is thought to prevent direct communication between the parties.
Finally, the parties' decisions during the mediation will take into account the reality they face. In the understanding-based mediation model, "reality" for the parties flows from a clear understanding of each other's interests and from the strengths and weaknesses of their legal claims. Professor Friedman refers to this process as "bringing reality into the room." It is thought that by keeping the parties in the same room the mediator is best able to make sure the parties have all the information they need to make solid decisions.(fn7)
Mediations conducted in this model reflect this definition. In the understanding-based model, the mediator will work tirelessly to vest control of the process in the parties, to foster a collective and collaborative problem-solving approach to the dispute, to establish understanding as the lynchpin of the mediation, and to introduce reality to the process at every turn.
II. Mediation in the Understanding-Based Model Contrasted With Traditional Mediation Models
The principal distinction between the understanding-based mediation model and other traditional mediation models is that in the understanding-based model the mediator generally conducts the mediation with the parties in one room, whereas in most other mediation models the mediator will periodically separate the parties during the mediation and speak with each party privately.(fn8) While this distinction is straightforward, it spawns a number of important implications for the manner in which the mediation is conducted that serve to distinguish the understanding-based model from traditional mediation models.
Most traditional mediations begin with an opening statement by the mediator.(fn9) During this statement, the mediator will usually bring the parties together and explain the process. The opening statement will clarify the mediator's role in the process and will often confirm the mediator's neutrality.(fn10) The mediator will often summarize his or her preparation in advance of the proceeding and will explain the confidential nature of the proceeding. Usually, the mediator will explain to the parties the ground rules that will govern the mediation. Finally, the mediator will seek a commitment from the parties to make a good-faith effort to resolve the dispute.(fn11)
In a mediation conducted in the understanding-based model, the process begins with the "contracting" stage of the mediation. Many of the same subjects covered in an opening statement are also addressed in the contracting stage of an understanding-based mediation. As in most mediations, the mediator will establish contact with the participants, explain the process, clarify the parties' intentions and ability to mediate, and negotiate the ground rules.(fn12) However, the manner in which the mediator deals with these issues is different in the understanding-based model.
Instead of making an opening statement, the mediator in the Understanding-based model will work to make contact with the participants by actively seeking to understand them in a more conversational fashion. The mediator will demonstrate his or her listening skills at every opportunity and will help the parties appreciate that understanding will be the lynchpin of the process. The mediator wants the parties to understand that virtually everything the mediator will do during the mediation will reflect his or her desire to raise the level of understanding in the room to the highest possible level. Ultimately, the mediator in the contracting phase seeks the informed consent of all parties to proceed with the mediation in a problem-solving fashion.
The next phase of both traditional and understanding-based mediation models begins the process of gathering information. In traditional mediations, this process is often commenced with opening statements from the parties directly involved in the dispute. The parties are given the opportunity to present the highlights of their cases to the mediator in front of the other party and its representative. This can be a volatile and emotional process. Mediators in traditional models often exercise a high degree of control at this stage of the mediation, and in general parties are not permitted to be overly argumentative.(fn13) At the end of this initial joint session the mediator will often question the parties directly to understand better their interests and positions.
The gathering of information in the Understanding-based model tends to be more conversational and less structured than in most other mediation models. The objective at this stage of the mediation is to develop the issues by setting out all information necessary to identify and establish the dimensions of the particular issues needing resolution.(fn14) The mediator and the parties will work collectively to identify all relevant facts, including economic, emotional and other factors that contribute to each party's views and concerns. During this phase the mediator will help the parties establish clearly where the parties agree and disagree. In some instances, this process is facilitated by written submissions from the parties or their lawyers.(fn15)
Unlike in most traditional mediation models, at this stage of the understanding-based process, the lawyers are often front and center. The mediator will probe the legal positions of the parties by asking their lawyers about the strengths and weaknesses of their case. The mediator will work to insure that the parties themselves, and not just their lawyers, appreciate the...