My mediation practice is “court-oriented;” I handle disputes that are filed in court. A recent research paper by Leonard L. Riskin and Nancy A. Welsh involving court-oriented mediations in ordinary civil suits caught my attention. It is entitled “Is That All There Is?: “The Problem”: In Court-Oriented Mediation” and is published by Penn State University – Dickinson School of Law as Research Paper No. 01-2008. ( George Mason Law Review, Vol 15, 2008)
The thesis is that “the problem” in such mediations is that everyone but the plaintiff is a “repeat” player. Both the plaintiff’s and defendant’s attorney have been involved in many mediations as has the insurance adjuster, and obviously, the mediator. The only one “new” is the plaintiff who is often a “one-shot” player.
The repeat players tend to define quite narrowly both the issues to be mediated and the set of available remedies, and often do so based on a tacit understanding and without any explicit discussion. As the authors explain, these repeat players “. . .tend to focus narrowly on two questions: First, what would happen if the parties litigated this case? Second, how much is the defendant willing to pay and the plaintiff willing to accept to avoid the delay, risks and costs of trial.” (Id. at 4.)
Consequently, the plaintiff or one-shot player finds herself in a mediation in which the agenda and parameters have been totally set and controlled by the repeat players. Often, because either the attorneys and/or the insurance adjuster do not feel comfortable doing so, no consideration is given to the plaintiff’s underlying interests, especially her psychological or emotional or non-legal needs. (Id.). The plaintiff or one-shot player is thus forced to participate in a process that addresses the very narrow issues of liability and monetary damages but ignores the underlying issues that plaintiff probably brought with her to the mediation – wanting to understand exactly what happened (i.e. what gave rise to the dispute) and why on a behavioral, cognitive and emotional level. Should the matter settle, the plaintiff is left feeling empty and wondering “is this all?” Because the underlying issues were never addressed during the mediation, the plaintiff, although now in the receipt of the money, does not achieve a behavioral, cognitive and emotional resolution. She may have money but no real closure.
The consequences? Both the clients and the attorneys have been deprived of “. . . opportunities for better processes and better outcomes, robbing mediation of its greatest potential for helping parties.” (Id. at 38.) That is, by the dominance of the repeat players at a mediation and their ability to define the “problem,” set the “agenda” and control the “remedy,” mediation as a process is grossly underutilized.
The authors suggest that to avoid this, the repeat players should invite the plaintiff – the one-shot player - to “ ‘map the problem’, i.e., explor[e] the situation comprehensively . . .without preconceptions about what is relevant or important.” (Id. at 49.) As a result, not only will the legal and economic issues be considered but so will be the cognitive, behavioral and emotional aspects of such issues.
Once the parties including the plaintiff have “mapped” or defined the “problem,” they should then advise the mediator exactly which of these issues should be addressed in the mediation. (Id. at 53.) Once the “problem” has been defined and set by all of the parties and counsel, both the repeat and one-shot players can mediate each issue, hopefully reaching a resolution that truly provides closure to all concerned.
To the repeat players, a mediation is just another day at work – involving “legal issues that are ‘ordinary’ and amounts of money that are ‘ordinary.’ But to the one-shot players, these disputes are typically extraordinary, once-in-a-lifetime events. And, every litigant brings along a unique history, circumstances and interests.” (Id. at 76.)
In sum, as the Honorable Wayne D. Brazil noted:
“Transparency, by itself, is not sufficient. . . [T]ransparency about process can acquire its full constructive power only when we include all the participants in the mediation in the key decisions about which process routes we should follow. In short, inclusiveness is essential to maximizing both the reality and the potential of process transparency.” (Id. at 83.)
So. . . in your next mediation, include the “one-shot” players: I mean, really include them. Make them a true part of the process.
. . . Just something to think about.