Fall 2010-#3. Civil Mediation: A Culture of Its Own.

• Author: by Donald (Tad) Powers, Esq.

Vermont Bar Journal

2010.

Fall 2010-#3.

Civil Mediation: A Culture of Its Own

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Civil Mediation: A Culture of Its Ownby Donald (Tad) Powers, Esq.Mediation was billed as alternative dispute resolution, but in civil cases in the early 1990s it looked less alternative and more like an outpost of litigation culture, echoing traditional judicial settlement conferences and the adversarial style of the courtroom. Now, fifteen years on, civil mediation has developed a culture of its own.

The paradigm in early mediations was the litigation paradigm; it was still about right versus wrong, arguing and persuading, observing form and ritual. Pre-mediation statements, if they were submitted at all, reflected the accusatory tone of a complaint. It was understood that there would be no ex parte communication with the mediator.

When the mediation got under way, the mediator radiated authority and subject-matter expertise that would give weight to his or her eventual evaluation of the case. Attorneys made opening statements much as they would to a jury. Clients rarely said a word in joint sessions. Immediately after opening statements, the parties retired to separate rooms.

The mediator then shuttled between rooms, using information and arguments from each room to sow uncertainty and doubt in the other room. The pace of the shuttle gathered momentum (on a good day) as tolerance levels were tested. If the bargaining dance left the parties glaring at each other across the floor, the mediator could share her view of the case, spiced with reports of what happened when similar cases were tried to judgment. That evaluation often did the trick, inducing concession and compromise.

As an attorney representing clients in early mediations, I was comfortable with this approach. It was predictable and relied on familiar analytical skills. And mediation was often more fun than direct negotiation. Who doesn't enjoy spending time with a sympathetic neutral instead of crotchety opposing counsel, or gathering the fruits of informal discovery, or schmoozing with a client while the mediator works the other room? Not least, bad news about the case could be delivered by the mediator so I could remain aligned with my client.

Today, mediation has both stayed the same and changed radically. It is still a facilitated negotiation firmly managed by an impartial neutral. A joint session followed by caucuses is still the norm. Rigorous legal and factual analysis, outcome prediction, cost-benefit evaluation and hard bargaining are still fundamental. The old skills are still indispensable, but now, as a mediator, I see those skills being rapidly supplemented to take full advantage of what has become mediation's own more flexible and adaptive culture.

Paradoxically, a more fluid mediation process has evolved in the context of increasing structure. ENE Rule 16.1 in the U.S. District Court, Rule 16.3 in Vermont Superior Court, the Uniform Mediation Act,(fn1) and the environmental and family Court mediation programs have institutionalized mediation in civil and family cases. In a zen twist, the structure of mediation laws and programs may have allowed us the comfort and security to work more flexibly and responsively with a wider array of tools. Talking mediation is no longer seen as a sign of weakness; even the most adversarial litigators are required by the rules to talk about it and to work toward agreement on who will mediate and when.

At the same time they are using adversarial skills to research and argue legal positions, lawyers are cooperatively negotiating the who, how, and when of mediation. Lawyers understand that working on competitive and collaborative levels at the same time is not only possible, it is in the best interests of clients, and it is professionally and personally more satisfying.

In the old days of the 90s, mediations sometimes foundered because they occurred too soon or too late-too soon because not enough information had been exchanged, not enough research and analysis had been done; too late because the gap in positions had been...