Printed from Michael Carbone's Resolving It newsletter
Continuing this month with our review of the Seven Habits of Highly Effective People, Habit No. 5 is to "Seek First to Understand, Then to Be Understood." Rarely do I see advocates in mediation who have mastered this habit. The duty of zealous advocacy almost always prevails, and lawyers seem to be better at speaking than at listening.
This phenomenon explains the current reluctance to participate in joint sessions. Who wants to sit and listen to a lecture? It's counter-productive, and it can easily escalate into a confrontation. So goes the explanation. But it presents a problem for the mediator.
The goal of mediation is to achieve resolution by facilitating communication and promoting understanding. A party's feeling that (s)he has not been heard and understood can be the reason why a mediation will either fail or become very difficult.
True understanding can only be achieved through face-to-face dialog and not by the use of an intermediary. The "caucus only" model of mediation lends itself to misunderstanding. Not to mention delay, repetition, and waste of time. But if the parties don't want to sit down together, what is the mediator to do?
The solution can be for the mediator to make a short but thorough opening statement in a joint session. This session can be held either at the beginning of the mediation or after some brief initial caucusing that allows the parties to "settle in" and get to know the mediator.
The mediator begins by discussing what the process is, including confidentiality and the need for candor. Then (s)he reminds the parties of the goal of resolution. (S)he gives a concise summary of his or her understanding of the case and what the positions are. This lets the parties know that the mediator either "gets it" or "doesn't get it." If it's the latter, the parties can offer their comments.
Parties should also be asked to add any thoughts that would be useful to resolving the case, so long as they can do it without being argumentative. This is the "dialog" (as opposed to a debate) that can lead to a true understanding.
At end of the joint session the parties should feel that they have been heard and understood by the mediator and by each other. This opens the way for the mediator to begin caucusing with each side so that they can exchange settlement proposals and settle their case.
I have used this mediation model many times and it has proven to be so effective that I will now use it whenever the parties will go along. It resolves disputes without wasting time or creating acrimony. In some cases we have even be able to dispense with caucusing.
One final and unrelated note. Law firms today are being asked to offer alternative billing arrangements as opposed to straight hourly billing. Do you think that mediators should offer flexible fee schedules? If so, what would you favor? (I have started by offering discounts to clients who schedule their cases in the quiet and serene atmosphere of Point Richmond.) Please respond by commenting on this article.
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.