New Hampshire Bar Journal
2005 Summer, 7.
Mediator Is an Action Noun
New Hampshire Bar Journal Volume 46, No. 2, Pg. 7 Summer 2005 "Mediator" Is an Action Noun Bar Journal Author - Attorney John Burwell Garvey
Action Steps for Conducting an Effective Mediation
The Purpose of Mediation
There are various reasons why lawyers and their clients choose to mediate. Some lawyers want to obtain cheap discovery; some just want to wear down the other side and see how low they will go. Others do it because it has been ordered by the court.(fn1) These reasons raise issues, including ethical considerations, which are not the focus of this article. Instead, this discussion will examine mediation as a process used to "assist people in reaching a voluntary resolution of a dispute or conflict."(fn2) This definition - and this article - assumes that the mediation is voluntary and entered into in good faith, with the purpose of resolving the conflict. This article will describe the process that an effective mediator uses in assisting the parties to reach voluntary resolution.
Although the definition I have chosen may seem obvious and straightforward, an examination of(fn3) its key words, as background to the discussion that follows, is instructive:
This is the verb that makes "mediator" an action noun. The person doing the assisting is the mediator. This is an active role.
Mediation is not about money, but about people. People decide whether they wish to settle or to fight. The mediator must focus upon assisting the people. This can be complicated and involves a lot of action.
Reaching means, "to stretch out or put forth."(fn4) The mediator must assist people in a way that causes them to reach out to a place where their interests intersect with the interests of the other people involved in the dispute.
"Self-determination is a fundamental principle of mediation."(fn5) The mediator creates a process and an environment that allows the parties to realize that they would rather reach for the common ground than continue the dispute. This is usually one of the most difficult tasks for the mediator. Although settlement must be voluntary, this almost never occurs without concerted action from the mediator. After all, the parties must change their positions in order to reach the place where their interests intersect.
In this context, resolution means "to find a solution to; to answer."(fn6) The mediator must explore the case with the parties in a way that allows the parties to find an answer to the dispute that works for everyone. To the fullest extent possible, the mediation must focus on resolving the needs of all the parties, rather than upon winning and losing. In this context, the mediator must always keep in mind that there are many different needs to be considered - even when there are technically only two parties. For example, the straight forward two-"party" auto case always has a plaintiff and a defendant, but also usually has a spouse, an insurance adjuster, all of the people up the insurance adjuster's chain of command, the insurance company itself, and at least two lawyers. The skilled mediator attempts to create an environment that allows for all of the needs in and out of the room to be considered.
F. Dispute or Conflict
If the parties were in agreement, they would not need a mediator. One of the mediator's jobs is to figure out what is in dispute and what is not. Surprisingly, many parties who have been unable to reach a voluntary resolution without the assistance of a mediator do not have a clear understanding of where the fight is.
Let us assume that the parties have reached a point in a dispute where they agree that it is a good idea to seriously explore the possibility of settlement; however, they are presently unable or unwilling to reach a settlement agreement on their own. They do agree that mediation would be a good idea, and they agree on the selection of a mediator. The mediator receives a call inquiring as to availability.
A. Conflict clearance
The mediator must first identify the parties, the lawyers, and the basic issues in dispute. Although he does not face the same conflict analysis as a lawyer representing a client or an arbitrator sitting in judgment, the mediator must be prepared to make a full disclosure to all parties of any matters that could reasonably cause a party to question the mediator's neutrality.(fn7) Before proceeding, he should make a full written disclosure to the parties and should give all parties a chance to decline the engagement - without embarrassment - if anyone is uncomfortable with proceeding. Since mediation is a voluntary process designed to lead to a voluntary resolution of a conflict, a mediator cannot force himself upon the parties, and there is no recusal motion needed as there would be with a judge; however, if the mediation is to accomplish its purpose, it is incumbent upon the mediator to project an attitude of transparency and respect for the parties and the process. The tone set by the mediator during the initial engagement is an important first step of the mediation process.
B. Initial action
Once the mediator has been engaged by the parties, he should begin gathering information. Generally, the parties will submit mediation packages, which provide the basic information, including applicable pleadings, and the "official" position of the submitting party. These are useful, but are advocacy pieces and do not provide the information that is often most helpful to the mediator. When possible, it is desirable to have the parties also submit confidential memos to the mediator, wherein they can be more candid about their concerns. This is specifically provided for in the federal setting and can be used in other venues as well.(fn8)
In my experience, even the confidential submissions are usually advocacy pieces. Very few lawyers trust the mediation process to the extent that they will tell the mediator in the opening round exactly what they (or their clients) need to accomplish. Regardless of how it is described by the party making the submission, a mediator should never look at the confidential submission as a "bottom line"; however, it will often provide clues as to where the fight is and what the needs are - particularly when it is compared to the submissions of the other parties.
C. Preliminary discussions with lawyers
Whenever possible, the mediator should speak individually with the lawyers before the first mediation session. Initial private conversations allow for the building of trust and candor and allow the mediator to obtain information that he would probably not obtain in a session where all parties are present, or even in a private setting where only the lawyer and client are present. The mediator can start by asking open-ended questions that enable the lawyer to talk about the case in a way that will provide the mediator with more clues about where the fight is. During this phase, the accuracy of the information conveyed by the lawyer is secondary to the importance of the perspective it provides to the mediator. This is not to suggest that the lawyer would or could ethically provide knowingly false information. However, since trained advocates usually tend to advocate, the mediator always needs to discern and distinguish agreed upon fact from an advocated position.
The following questions, phrased to fit the mediator's own personality, usually yield helpful responses:
"What's this case all about?" As mundane as this sounds, this broad question gives the lawyer a chance to describe the dispute on her own terms, and gives the listening mediator a chance to probe further with more specific follow-up questions that will help to narrow the issues and determine what key players must be physically present at the mediation.
"Do you have any concerns or are there any issues that I should be aware of with respect to your client?" If there are client control issues, such as unreasonable expectations, extreme anger, distrust of the process, dislike of the other party, etc., this gives the lawyer a chance to bring them out in response to a question, without appearing weak or defensive. Also, the mediator can determine whether the case is highly charged with emotion and whether an apology is important and even possible. (The potential value of an apology is discussed further, below).
"Do you know yet whether you will have your client speak in the general session?" This is an important consideration at the mediation - particularly for the plaintiff. Many times, an insurance adjuster has not previously met the plaintiff, and the mediation can have an important impact on perception. This question puts the issue out there as a matter that counsel must consciously decide.
"Do you have any concerns or are there any issues that I should be aware of with respect to the other party (or parties), or with respect to any of the players?" This question is intended to elicit concerns involving perceived problems with other lawyers, insurance adjusters and their companies, party spouses, etc. One lawyer may have concerns about another lawyer, based upon prior dealings. An insurance adjuster may have had a prior bad experience with counsel for the plaintiff, or vice versa. The parties to the actual dispute may have a prior history that is critical to an understanding of the dynamics of the mediation. The...