If you are a person turning to mediation to resolve a conflict, how can you best prepare so that a mutually acceptable resolution is as likely as possible? If you are an attorney, how can you provide the most valuable assistance to your client when a mediation is going to take place?
For the person going into mediation (commonly referred to as a party), with or without an attorney, it is important to understand what mediation is and is not. For the attorney, the best way to increase your effectiveness is to shift your thinking and preparation from a litigation model to mediation.
Both the party(ies) and the attorney should be aware that mediation is not arbitration, litigation, discovery, nor a deposition. Mediation is a conversation, a dialog facilitated by a neutral third party in a structure of organized problem solving.
The fact that this process is a conversation allows for freedom in exploring a wide range of possible solutions. The mediator will not offer legal or financial advice, will not say who might be right or wrong. On occasion, depending on the matter at hand, the mediator may – with the clear permission of the parties – offer a solution for consideration, but the goal is to have the parties design their own resolution, accept it and own it. In situations where one side may be pro se (landlord-tenant is a common example), or in certain domestic disputes such as post-decree parenting agreements, the mediator may offer suggestions for consideration based on the mediator’s experience with similar situations: “Here’s a way of handling that situation that has worked for other families.” In business, financial or employment disputes – contract fulfillment, debt settlement, investments, discipline, termination, Equal Employment Opportunity – it would be common for the mediator to make no suggestions, but to ask clarifying questions of both sides and to offer summaries for both sides to consider so that pro se parties, or attorneys and their clients can begin to formulate resolutions.
As a mediator, I’ve had many situations where attorneys brought briefcases and boxes full of documents to the mediation, only to learn that the vast majority of that weight could well have been left in the office. The reason is that the mediation table is not a court of law, evidence is not submitted. For example, if a maintenance contract was (in the opinion of the recipient) not properly fulfilled, a copy of the contract would be useful. Copies of the emails that went back and forth over several months are not useful. Why? Because the point of a mediation is not to prove something to a third party such as a judge, but rather to agree on what might be a solution. Litigation is about the past; who is at fault? Mediation is about the future; what is a mutually acceptable solution going forward?
What happens in a typical mediation? The mediator starts by talking about the process, what it is and how it will proceed. Points of emphasis, as mentioned above, are that this is not a legal process and that the goal is to find an agreement that all parties can accept. An Agreement To Mediate is signed, which refers to the confidentiality of the process and an agreement on who pays for the mediation service. If the parties are paying it is usual for the split to be equal – 50/50 or 33/33/33 – but there is no rule covering that, and on occasion one party pays the full cost.
Before beginning, an explanation of caucus is provided. A caucus is an opportunity for parties to speak privately. This may be attorney and client in a separate room for some minutes, or it may (if desired by the parties) include the mediator. In the latter case the mediator can act as a devil’s advocate, a person providing a reality check. Note: Some mediators separate the parties soon after the introduction and shuttle between rooms. My style, also used my many mediators, is to have the parties stay at the table as long as that is effective and share their viewpoints, their concerns, their potential solutions.
So what should a party, or a client and attorney, have as a mindset going into a mediation?
First, remember that the purpose of the time together is to, if possible, find a resolution that will close the matter then and there. This is critical in preparation and in pre-mediation conversations with an attorney, union steward, or friend who is accompanying the party. Mediation is voluntary, and thus there is not a winner and a loser, because no one will voluntarily agree to lose. So what does a mediated settlement sound like? People say “I can accept that. It isn’t everything I wanted, but it is resolved and I can get on with my life, with running my business, with enjoying my family and friends.” By choosing mediation over litigation people save time, money, energy, stomach acid.
Second, as described above, bring what documents you want to show the other parties to make sure there is a mutual understanding. Remember that the parties are thoroughly familiar with the case; only documents which can clarify a point of misunderstanding are of value.
I’ve done numerous mediations where the parties started off so angry they were unable to look at each other, only to stand three hours later and shake hands. By understanding how to approach mediation, and what to expect, you increase your chances of also ending with a handshake.
Edward M. Krauss
Dispute Resolution, Inc.
614 619 0017