Back on September 1, I wrote about the “Task Force on Improving Mediation Quality.” The Task Force, which was formed by the American Bar Association Section of Dispute Resolution in 2006, was charged with conducting an investigation to identify the factors that define high quality mediation practice. You can find their Report
on the Section's website.
One of the factors that they cited was case-by-case customization of the mediation process, which is a concept that may be surprising to many people. Most mediators and attorneys have become accustomed to using a “one size fits all” approach rather than making adjustments from case to case. The fact is, however, that times are changing.
Counsel should always talk with the mediator ahead of time about the process. The mediator should make an initial assessment of the dispute, suggest the appropriate methods to be used, and seek approval of those methods from counsel. Each attorney will have his or her own negotiating strategy, but all counsel should be on the same page with the mediator regarding the process.
There are a few simple steps to be followed when customizing.
Identifying the Method
. Depending upon the nature of the conflict the mediation will involve one or more of three different methods of mediating: competitive, cooperative, or transformative.
If the dispute is just about money, such as failure to pay a bill, the mediator’s task will be to facilitate a competitive negotiation. The result will be a distributive bargain (the “zero sum exchange”), with no new value created. Bear in mind, however, that disputes which appear on the surface to be about money alone may really be about something else as well, and that they may require more than a purely competitive approach.
Disputes that arise from a pre-existing relationship are good examples of those that are about more than money. Thus, employment disputes often require that the mediator suggest either an apology or at least that the employee be given an opportunity to voice his concerns directly to the employer. Other considerations might be ways to help the employee make a transition to a new job. In such cases, the nature of the mediation will be both competitive and cooperative. The competitive aspect will involve the payment of any money that is to change hands, while the cooperative aspect will entail creating additional value through the apology, by giving the claimant a substitute for a day in court, or by other means.
Business disputes, such as disagreements among partners or between companies that have an ongoing relationship, are often classic examples of cases that call for the cooperative method. The case can frequently be settled by restructuring the relationship or by striking a deal that meets the business needs of both sides.
Cases that involve a family, neighborhood or other personal relationship that has broken down are examples of situations that may call for the transformative approach. Cases such as these can be among the most challenging to settle because the destruction of the relationship has become the obstacle to resolving the conflict. In these disputes the mediator first works to help the parties restore their trust in one another and then to create an agreement that ends the conflict and allows them to get on with their lives.
Having agreed upon one or more methods, the mediator and counsel will need to customize the process so that it will be consistent with their strategy. In the purely competitive situation, the typical model which uses a joint session followed by separate caucuses may work quite well. If the method is either wholly or partly cooperative, however, and especially if it is transformative, a more creative approach will be required.
Customizing the Caucus Model
. Customization will generally involve working with the caucus model of mediation so that it fits the needs of the case. There is no “right way” to use the caucus model, except for the way that works in the case at hand.
In business cases that call for a cooperative approach, the mediator will be presented with the question of how best to facilitate the negotiation. Who will do most of the talking, the principals or the lawyers? What setting will be the most comfortable? If the principals alone become the real players, will the mediator play an active role or not?
When the transformative approach is indicated, it is important to allow the principals to interact. They will need to talk in order to rebuild their relationship, and if the mediator insists on keeping them apart for the whole day, the mediation may result in nothing more than frustration.
Departures from the Caucus Model
. In some situations, customization may actually involve a departure from the caucus model so that the mediation is conducted entirely, or at least primarily, in a plenary session. All participants remain in the same room for as long as possible and mediate under agreed ground rules. Anyone may call for a break at any time, whether it be to confer with counsel or for some other reason.
Business cases and family disputes are good examples of these situations. Cases where the parties are not represented by counsel also seem to lend themselves to this approach because the parties do not have an expectation of being kept in separate rooms.
The Need for Flexibility.
Flexibility allows for changes in format, style or technique in the event that developments occur during the mediation that were not expected. If, for example, one of the parties decides during the mediation to abandon a competitive attitude in favor of a cooperative approach, the process will probably need to be modified in order to allow for direct dialogue.
The mediator may need to improvise in response to the behavior of the parties or the information that they present. It is impossible to anticipate everything that the principals may say or do, and the mediator must always be ready to make adjustments.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.