When I meet people attending a mediation for the first time, I’m always interested in finding out what they expect will happen. Often they don’t know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes describe various approaches to conducting mediations. I usually have an idea about how I want to proceed, but I try to remain open-minded about what will work. I learned the Pepperdine five stage approach to mediation quite a while back (convening, opening, communicating, negotiating, closing), but that framework doesn’t fully answer some much more basic questions that I think about before the start of any mediation, for example, where is everybody going to sit? And, what are we going to talk about? The answers to those questions about format and content vary in every case. I usually use a combination of styles, depending on the needs of the case and the preferences of the parties. I will list them in order of my preference, from my least to most favorite:
The parties sit on opposite sides of the table, and the mediator sits at the head. (If you really want to approximate a courtroom, you would use something like the set-up below, but that would be highly unusual in a mediation.) Each side takes their turn presenting a summary of their legal and factual positions, and responding to the presentation of the other side. The lawyers do most of the talking. The mediator asks questions and might present the parties with his or her own evaluation of the case.
I usually tell parties up front that I prefer not to conduct the mediation this way. It is too much like court, and I want mediation to be seen as the anti-court. But mediations sometimes devolve into this format anyway, because after all, the parties have been preparing for their day in court, they may be accustomed to and expecting this format, and the mediation might be the best approximation they are going to get of their day in court.
The parties tell me up front that they do not even want to sit in the same room with the sons of bitches from the other side, not even for a minute. They do not think that will be productive. What they want to do is sit comfortably in their separate rooms, brainstorm among themselves, and explain their view of the case to the mediator. I generally use a conference room for caucuses, but caucuses also lend themselves to a more informal setting, like a reception area. I’ve even sat with parties in the plaza outside my building, and I encourage parties to take a walk or go out to Starbucks while I am meeting with the other side.
In caucus-style mediation, the mediator’s role is first of all to act as a sounding board, and then to coach each side in turn in their negotiations, and to transmit information, demands and offers back and forth between the parties. I usually tell parties seeking this approach at least to try a joint session for as long as it seems to work, because it is more efficient to communicate information directly, than to use the mediator as a conduit to transmit information. But most mediations require at least some use of caucus. The advantages of caucus include confidentiality–people really let their hair down in caucus–as well as comfort. The disadvantages include inefficiency–there tends to be a lot of down time in caucus–as well as the lack of an opportunity to confront and possibly reconcile with the other side.
Instead of sitting on opposite sides and directing their presentations at the mediator, as in the mini-trial model, I try to create the appearance of sitting around a table and brainstorming about how to solve a common problem. Instead of asking lawyers to present their case, I prefer to ask them to predict their chances of prevailing at trial. I try to involve the parties as much as possible, and get them to understand the costs and risks of trial, as well as the advantages of settlement. By the end of the mediation, I explain, the parties are at least going to have a clearer picture of their options, and should in most cases be able to arrive at a more advantageous result through settlement than by continuing to litigate. We also discuss the toll that the dispute is taking on the parties, and try to imagine what life would be like if the dispute could be removed from people’s lives.
The object is to arrive at an objective, cost-benefit analysis of both parties’ positions and options, so they can make an intelligent, dispassionate decision about how to resolve their dispute. Getting the parties into problem-solving mode, and helping them view their conflict in a more objective way is usually as much as a mediator can hope to achieve. The disadvantage is that we might be ignoring some deeper problems that are really driving the conflict.
4. Encounter Group
I don’t have a set-up like the picture below. That would probably be too scary for most of the people attending a mediation session at my office. But I do encourage people, even sitting around a conference table, to open up the discussion a bit. Sometimes I tell mediation participants that it might be best if we don’t talk about the case at all. Let’s talk about anything else. Talk about your hobbies, your families, how business is going, your hopes, your dreams, what is working, what difficulties you are having, whatever. Then the harder part. Talk about the relationship between the parties, where it started, what it meant, what caused it to break down, whether it can be repaired. I encourage parties to tell the other side things they agree on, things they disagree on, things they appreciate about each other, things they resent about the other. Listen carefully to what the other side is saying. Show that you understand where they are coming from.
When this approach works, it can be magical. The parties are able to lay bare the problems that are really driving their dispute. Once they confront those problems, which is difficult, they often find out that the thing they thought they were fighting about turns out to be relatively easy to solve. Note that we are not doing group therapy when we employ this style, because the goal is still conflict resolution, not curing people’s psychological problems. Instead we are conducting mediation using some of the style and techniques of an encounter group. Not everybody wants to go through this experience, and it is not appropriate for all cases, but it can be the most satisfying kind of mediation for all participants.
As I said, I generally use a combination of all these styles. The trial lawyer in me enjoys hearing attorneys practicing their closing arguments, and trying out their cross-examinations on the other side. In caucuses, where most mediation sessions tend to head, I act as shuttle diplomat, negotiation coach and advocate for each side’s position in turn. When I can get the parties into problem-solving mode, it’s usually an interesting exercise to try to predict how a case might be viewed by a judge or jury. But the most challenging and rewarding style for me is to adopt the role of group leader, and try to help people understand one another and perhaps repair their broken relationships.