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Mediate.com

Are Mediators Indoctrinated or Evolving?

by Henry Cox
March 2012 Henry Cox

The Ethical Mediator should be an expert in the “mediation process” and be able to knowingly define any other conflict resolution process being provided.  For example, the oxymoron concept of  “evaluative mediation,” at best, is typically not understood by the mediator, attorneys or the parties and, at worst, is simply unethical, (or the unauthorized practice of law by non-attorney mediators).

            Presumably, most people with an infection would not go to a physician who said, “I don’t really know what bacteria is, how it does this to your body, or exactly how an antibiotic works, but I do know if you take it the infection will probably clear up, or, you might wait a week or two and it will either go away or get worse – I did go to a three-day course where the drug company showed us what infections generally look like, what the dosage is for several types of antibiotics and then I even treated three patients with antibiotics.”

            Yet, frequently, attorneys and judges (the conflict professionals) have no concern about “court approved mediators” resolving civil litigation cases without understanding the nature of conflict, the inherent nature of available settlement options, how settlement processes work, or what might cause one process to work over another.  One, judge on an “expert” ADR panel said: “Judges have a very good grasp on ADR concepts . . .When I was appointed and went to judicial college, we spent an entire, four-hours, focused on ADR . . . I personally believe mediation is not appropriate until discovery is complete and any motions for summary judgment have been filed.” While there has been some evolution in civil litigation mediation, many judges and attorneys, coast-to-coast, still pronounce that the purpose of mediation is to have an experienced trial attorney, in that area of law, tell the parties what their case is worth.

            Once scientific knowledge included an understanding of bacteria, our expectations for medical professionals grew.  As researchers, government, businesses and the general public gain a growing awareness of conflict resolution options, the expectations for mediators will continue to grow. Simply understanding that civil cases will either settle or go to trial is not a professional understanding of conflict resolution, anymore than understanding that a person should wash a cut to avoid an infection is a professional understanding of bacteria.   

Conflict Management Basics

             “Conflict management” can be defined both in terms of its meaning and techniques.  If a conflict is to be resolved, that resolution arises from a settlement process.  The parties do not always mutually agree to the settlement process used.  Opposing parties may be managing the conflict with very different processes, strategies and anticipated outcomes.  Civil litigation is typically not a mutually, voluntary process – it is one party’s strategy for conflict management.  Mediation becomes an opportunity to inject a mutually accepted process for conflict management.

Conflict Management Concepts

  • All conflicts will reach a point of resolution
    • the durability of the resolution may be uncertain
    • the method of reaching resolution will vary
    • the real or perceived “fairness” of the resolution will vary
  • Resolution by negotiation is not always fair, (fairness is a point of view)
    • negotiators are allowed to build leverage to gain a superior bargaining position
    • there may be unequal (or misunderstood) resources or power
    • the resolution can be the result of avoiding the alternatives to not resolving the dispute
    • a party may have superior information or knowledge
    • a party may hide information or be dishonest
    • available sources or resources for bargaining may be insufficient in relation to the actual value sought for exchange
    • outside factors may intervene, e.g. time, health, emergency
  • Competent trial attorneys promote resolution through advocacy and winning.           
  • Competent negotiators promote resolution by forming agreements.
  • It is possible to be a competent trial attorney and negotiator.

Settlement:

  • There is a “conflict”, (real or perceived), arising from a “competition” of ideas, goals, expectations and economic values (or various combinations), subject to a resolution
  • There is a need or desire to develop or cause a “resolution”
  • Settlement processes include, avoiding, acquiescing, conceding, negotiating, mediating, authority-decision, arbitrating, litigating (trial), or physical elimination of the object or opposing party (riots, murder, war)
  • The settlement process can change… begin in negotiation and end in war – or – begin in war and end in negotiation
  • Parties must agree (directly or by actions) that a resolution or conclusion has been reached 
  • The parties determine the “durability” of the settlement resolution –  (“whatever,” a handshake, a written agreement, oppression)

Negotiation:

  • A conflict exists where one (or more) party can no longer avoid the conflict or the existing/anticipated consequences of the conflict
  • Development of a relationship between parties for the purpose of exchanging positions, interests, views and values
  • A process where the “goal” is to reach an agreed upon resolution to the conflict, (equity or parity are not necessarily the goal)
  • Each party (or agent) has an interest in the negotiated outcome or lack of a negotiated outcome
  • Each party has the ability to control the outcome by methods of gains, concessions and agreements

Mediation:

  • A negotiation, facilitated by a neutral, third-party (mediator)
  • The mediator does not have an interest in a negotiated outcome
  • The mediator has no decision-making authority

Why Mediation?

  • The conflict can be re-engineered
  • The points of resolution can be filtered out from points of perpetual controversy
  • Mediator brings negotiators together with the parties
  • Mediator can identify missing data and bring it to the table
  • Interests can be identified and discussed without a sense of weakness
  • Negotiation communications are not delayed – a time-warp effect
  • Parties experience empowerment and self-determination
  • The advocate can lower the sword and shield without becoming vulnerable
  • Common interests can be identified
  • Immediate return on emotional or decision-making options, proposals, positions goals or expectations
  • Partial agreements (including time limitations or contingencies) can be reached to lay the groundwork for comprehensive agreements
  • Provides a participatory forum to reach a settlement (resolution being inevitable)
  • Opportunity for a “reality check”
  • Parties can deal with broader issues of the dispute as opposed to narrow legal issues or predictions of trial outcomes
  • Parties can explore their alternatives to a negotiated outcome in a safe environment, or, parties can face their worst demons in a safe environment
  • Parties can “realize” the opportunity for a negotiated outcome
  • The opportunity to develop a known outcome – managing risk

Reasons “Party” Negotiations Fail in Civil Litigation (not mediated)

  • Unrealistic expectations of a party or attorney
  • Desire to win (being the bulldog, or, a matter of public policy)
  • Lack of relevant information or existence of hidden information
  • Inability or lack of desire to see or consider options
  • Removal or distancing party from the dispute (let my attorney deal with it)
  • Failure to identify or separate a party’s interests from their positions
  • Full authority to reach settlement not made available
  • Person with full settlement authority not participating in the negotiation
  • Desire to cause harm
  • Belief there is still time or a significant change will occur
  • Emotional Blocks, fear, insecurity, ego/pride, anger, or being the protector
  • Values-based issue, religious belief, moral or cultural issue
  • Manufactured Blocks, need more time, not right, have a flight to catch
  • ISOLATION OF THE NEGOTIATORS AND NEGOTIATED INFORMATION

[The inability to form a negotiated outcome in mediation can be caused for some of the same reasons. However, a mediator may be able to identify the issue and allow the parties to remedy the roadblock to continue the facilitated negotiation]

The Mediator

Mediator #1:  “Parties need to be told what their cases are really worth.”

            It is easy to force parties to settle.  It is much more difficult and meaningful to provide a process where the parties find and develop the resolution using self-determination.
            A mediator who takes this evaluative approach is potentially violating the professional code of conduct by improperly giving legal advice, (unauthorized practice of law for non-attorney mediators).  If the mediator wants to give her opinion by applying her interpretation of the law to the facts or the litigated outcome, then the mediator should be retained as an arbitrator, not a mediator.  The concept of “Early Neutral Evaluation” or “Early Assessment Process” (EAP) are specific processes and carry significant, ethical pitfalls, especially without direct court supervision or intervention and can mirror many aspects of a “Special Master” process.  Typically, there are specific court rules regarding an EAP or Special Master process.

Mediator #2:  “I don’t believe it helps resolve anything to have the parties try to negotiate in the same room, so it’s best to separate the parties.” 

            What the mediator is really saying is that he is uncomfortable or unable to facilitate a face-to-face negotiation.  In fact, a face-to-face negotiation is the most common, most durable and most efficient form of negotiation.
            Absent extraordinary circumstances, parties are more than capable of negotiating face-to-face with intermittent breakouts.  Arguably, the traditions of litigation have created the cultural norm that infers such a process is taboo, (i.e., conflict management by proxy – the attorney or agent – a judge or jury can better resolve the dispute).
            As a child, or as an authority figure, most people were taught, and teach, that if there is a conflict, YOU MUST LEARN TO WORK IT OUT BETWEEN YOURSELVES. . . or else there is a consequence which is most likely less favorable.
            It is okay for mediators and attorneys to take the position that parties should be separated for negotiations, but understand this position is often taken to satisfy mediator’s own comfort level and it is not necessarily the best method for the best resolution.
            Separation of the parties is most effective and efficient once the parties, face to face, agree there are actual options for a negotiated settlement.

Mediator #3:  “I believe I was asked to be the mediator, because of my expertise in this area of law,” or, alternatively, “ . . . because I’ve tried over 100 such cases.”

            First, you immediately know that the mediator may not understand the fundamentals of conflict, settlement, negotiation, mediation or dispute resolution.
            Second, you know the mediator will continuously filter most or all communications as, “thank goodness I know what’s best for these people.”
            Third, if that was the basis for the selection, then parties may have attorneys who do not understand the fundamentals of conflict, settlement, negotiation, mediation, or dispute resolution.  Further, the selection was likely made, because they feel more comfortable or they do not know any better.
            Fourth, if the parties have two (or more) competent, opposing, attorneys who are experts in the field of law being litigated, another expert is either unnecessary, or the mediator is really acting as an arbitrator or a target to be leveraged by the parties.
            Fifth, if one of the attorneys is not competent in the area of law and wanted the input of a mediator who is an expert on the legal issue, then the attorney should probably not be handling the case.
            Sixth, there is a major difference between a mediator bringing litigation experience and knowledge to the table as opposed to applying substantive legal expertise.
            Quality mediators, who understand “legal expertise” is one of the most common selection criteria, take the compliment, set aside their expertise, and focus on being an expert in the mediation process – bringing the mediation process to the parties with a strong infusion of self-determination.

Mediators Testing Their Skills as an Expert in the Mediation Process

            #1   Mediate a case in an area of law outside your expertise.  If you feel incompetent or uncomfortable, you are not mediating. Rather, you are struggling to provide an evaluation relying upon your opinion of the law, the application of the law to the facts and how the parties should see their conflict.  You are likely strong-arming parties, using intimidation or techniques of persuasion – even though you don’t see it.

Remember, frequently judges, and almost always jurors, are not experts on the area of law in conflict.  Judges are experts in applying legal principles raised by the parties, the rules of civil procedure and the rules of evidence to the conflict presented.  Jurors are experts for presumably applying the specific jury instructions given to them as applied to the conflict presented.

            #2   Mediate a conflict where there is not a litigation outcome.  If you find it much more difficult or frustrating to assist the parties to reach agreement, then you are wanting to “decide” or “judge” issues in conflict, not “mediate.” The temptation is to be a “problem-solver,” and not a facilitator of a self-determined outcome.

Summary

Parties in conflict are extremely capable of communicating the facts and the nature of the conflict.  The attorneys in civil litigation most often are competent in laying out the legal issues and potential legal outcomes – even when biased toward a desired litigation outcome.  Unrepresented parties litigate at their own peril. [Understanding that Small Claims and Domestic cases can have some unique mediation factors, or specific rules].
Mediators in civil litigation should not be surprised that legal issues can create the foundation of the legal case, but non-legal issues frequently become the keys to finding resolution even in the most complex cases.

The mediator’s job is to assist the parties to re-engineer the conflict into a negotiable format, to convert positions into identifiable interests, filter out irrelevant or roadblock issues, build potential options, and create a negotiation environment to allow parties to exercise self-determination for a negotiated outcome.

Biography


Henry Cox has been an active mediator and arbitrator since 1994 and provided over 1000 hours of dispute resolution training. Past-President, KBA ADR Section and KCMBA ADR Section. Trial attorney for over 30 years, "Best of the Bar" KC Business Journal 2002-2011, Super Lawyers Kansas/Missouri.



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Website: www.henrycoxlaw.com/

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